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In matrimonial disputes, the question about rightful custody of children may crop up before the court. The court is usually requested to decide the question during the pendency of trail. It is an important matter to decide as it not only affects the parents but also the children who may feel being pulled up in opposite directions by parties, they probably love equally. The court can exercise its jurisdiction only if it has jurisdiction in the main petition which is pending before the court. If the child is under the age of 5 years, the mother is usually considered as guardian.

Important points while determining the child custody issue:-  

1. Age and sex of the child.  

2. The character and capacity of proposed guardian.

3. Any wishes of deceased parent i.e. specified in will.

4. The minor's preference, if the child is old enough to give an intelligent preference.

5. The court usually tries to keep children united.

6. Though the guardianship decisions tends to tilt a lot in favour of mother, justifiably so, and guardianship of girl child virtually always goes with the mother only, however, if the mother is ill and financially not strong or a disable then usually court deny guardianship on these grounds.

7. Usually the children maintenance cost is borne by the father irrespective of the fact that its mother who has been given the child custody.

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Statutory law references.

  1. Section 26 of Hindu Marriage Act, 1955
  2. Section 38 of the Special Marriage Act, 1954
  3. Section 25 in The Guardians and Wards Act, 1890

Important judgments:- 

  • Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka 1982(1)SCALE 608 (Supreme court)
  • Sheila B. Das Vs.P.R. Sugasree 2006(1)RCR(Civil)758 ( Supreme court) 
  • Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 ( 3 ) RCR (Civil) 233 (Supreme court)
  • Roxann Sharma Vs. Arun Sharma 2015(2)RCR(Civil) 93 (Supreme court)


  • Disclose all the facts related to marriage.
  • Disclose all  the details about the pending cases, if any, to your lawyer
  • Provide all the details  such as Age, educational expenses, comparative emotional attachment to either parents, physical abuse etc. with your lawyer
  • Provide details of opposite party i.e. income, status, character, nature etc.  to your lawyer.

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