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Guest (n/a)     05 March 2009

Who can keep child after divorce in India?

 Who can keep child after divorce in India?

wife going to get divorce is pregnant. how can i keep my child with me after birth?


 11 Replies

Manish Singh (Advocate)     05 March 2009

under these condtions  you shall not be gicen custody of your  child since the infant needs maternal care. so not possible.


Mr. Manish is absolutely right. I do agree with him,

N.K.Assumi (Advocate)     05 March 2009

In such situation nothing can replace the lap of the Mother:

Swami Sadashiva Brahmendra Sar (Nil)     14 March 2009

for child's custody u have to wait at least for five years. thereafter the court will consider  if it is in child's wellfare to transfer his custody to u. however the court  may grant u the visiting rights from the very day of birth.

B.N.Rajamohamed (advocate / commissioner of oaths)     15 March 2009

As per the law untill the child completes 5 years the mother has the every right to keep the child in her custody and it cannot be challenged unless there exists certain essential grounds which may affect the welfare of the child.

After the completiion of the 5th year a petition shall be filed as per the GUARDIANS AND WARDS ACT to claim the custody of the child through the order of the court.


After the Birth of the child, he/she will require mother's nurturing more than the father's care. The welfare of the child is of primary importance in deciding cases for custody of child. Hence in the instant case it is imperative mother gets custody of the child after birth.

For further clarifications, you can write to me at

Emilyroggers (def)     17 March 2010

After divorce in india it is simply not possible to keep the child with you because after the birth of a child, the baby needs mother more than the father. It is simply impossible for a man to take care of his newly born child alone.

Tajobsindia (Senior Partner )     11 July 2012

Originally posted by : Guest
  Who can keep child after divorce in India?
wife going to get divorce is pregnant. how can i keep my child with me after birth?

@ Author,

In such case the custody of the child ordinarily will be with the natural mother up to 5 years of age and the father gets visiting right.

The court while deciding the issue with regard to child custody considers the "welfare of the child' only and in order to grant the custody the tender age of the child plays a big role. But you are tellign us that a divorc case is underway - right!

Under S. 6 The Hindu Minority and Guardianship Act, 1956 clearly provides that natural guardian of a minor child is the father however up to the age of 5 years custody shall ordinarily be with the mother. In order to get the custody from the mother the father has to prove in the court that the 'welfare of the child' will be best if the custody is granted to him after the child is born as he only can be the best person which help in the over all development of the minor child.

Not only the divorced lady but even one who has remarried after the dissolution of her first marriage can be allowed to keep the minor child if the consider that welfare of the child is more secure with her then the natural father.

There are instances where father has been granted custody of minor child if it was found that the welfare of the child not secure while staying with the mother.

But here is a mind bender fact by way of a old query before us so in your case if you have such evidence or circumstance to prove in the court you can be granted the custody of even minor child less then 5 years of age otherwise you will get visiting rights only plus you will be ordered to pay for the maintenance of the child on regular / monthly basis post divorce.

If your wife after divorce herself is ready to give away the custody of child to the father of the child then court will not interfere in such case, this will be mutual understanding between the parties.

To me the best way out in cases like these is to try out settling this issue amongst yourself and prepare a MoU between yourselves which is duly signed & witnessed and notarized and while divorce is being contested present the same and convert divorce into MCD with best interest of child post divorce well protected by both natural divorced parents.

2 Like

Never Give Up (Fighter)     11 July 2012


I have a query on "Hindu Minority and Guardianship Act" and "THE GUARDIANS AND WARDS ACT,1890".


Under what circumstances we apply these two acts.


As a laymen i would think that if my kid is of age >5 yrs and i want custody of my kid then i should directly apply in court under "Hindu Minority and Guardianship Act" , as it says that father is natural guardian after age of 5 and i would not apply for custody in "THE GUARDIANS AND WARDS ACT,1890".


Explanation on which act to select at what age would be of great help.

1. I am learning while fighting the cases hence i may have asked very basic / stupid question.
2. I am the husband and 498a,DV are currently going on.

Asif Saleem S (Manager)     16 December 2012

My wife & me had some misunderstandings with each other (Love Marriage of 3.5 Years)....... I have a 3 months Girl baby... But because of misundrstanding....  My wife left the baby with me before 2 months & went to her mother home.... Now my question is can i secure my baby from a irresponsible mother...Because i need my baby......

satyam   29 February 2016

Hi I am satyam aged 31 years, i got married in jun 2012, my wife stayed with me for exact 3 years and now left me since 8 months she took my duaghter also with her as ababy is 2.2 yeras old i am unable to do anything. in this 8 months i tried her 7 times in so many different ways like with society people and alone with the help of my parents to convince her to come and stay with me but i am failed. i never seen a mother who is irresponsible for the baby. my wife could not make her to sleep at night and does not feed at right time and because of this carelessness my baby does not speak even a single letter also.

now here are my question.


1. if devorce is not done can i bring my doughter after 5 years of my baby's age.

2. to take custody of baby how can i prove that my wife is unfit mother.

3. what are the consecuenses if i take my doughter after 5 years if devorce is not done.

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