Article Summary
During divorce proceedings in India, child custody is decided primarily on the welfare and best interests of the child, rather than an automatic preference for either parent. Courts may grant physical custody, joint or shared parenting arrangements, interim custody, and visitation rights depending on the circumstances. Factors such as the child’s age, emotional needs, education, safety, existing relationship with each parent, stability, and sometimes the child’s own preference can influence the court’s decision.
Divorce can be a difficult experience for the entire family, especially when children are involved. While parents deal with the legal and emotional challenges of separation, one of their biggest concerns is deciding who will take care of the child during the ongoing divorce proceedings. Many people believe that child custody can only be decided after the divorce is finalised. However, under Indian law, a parent can seek interim or permanent custody of a minor child even before the divorce decree is granted.
The primary concern of the court is to protect the child’s welfare and ensure that their physical, emotional, and educational needs continue to be met during this challenging period.
Indian law provides legal remedies for parents seeking custody while divorce proceedings are pending. Section 26 of the Hindu Marriage Act, 1955, empowers the court to pass interim orders and make appropriate provisions regarding the custody, maintenance, and education of minor children during matrimonial proceedings. The court may also modify or revoke such orders whenever circumstances require it. Additionally, the Guardians and Wards Act, 1890, provides a legal framework for determining guardianship and custody. Sections 7 and 17 deal with the appointment of guardians and the factors relevant to the welfare of a minor, while Section 25 concerns the return of a ward to their guardian in appropriate circumstances. Therefore, a parent does not have to wait until the divorce is granted to approach the competent court for interim custody, guardianship-related relief, or visitation rights, as applicable.
When deciding child custody, Indian courts do not automatically favour either the mother or the father. Instead, they examine the circumstances of each case and determine which arrangement would best serve the child’s interests. Factors such as the child’s age, emotional attachment to each parent, educational needs, existing living arrangements, safety, and the ability of each parent to provide a stable environment are taken into consideration.
The court may also consider the child’s wishes, depending on their age and maturity. It is important to understand that a parent’s higher income does not automatically establish a stronger claim to custody. The court focuses on the child’s overall physical, emotional, and psychological well-being rather than treating custody as a dispute between competing parental rights.
The Supreme Court has repeatedly emphasised that the welfare of the child must remain the paramount consideration in custody disputes. In Col. Ramneesh Palsingh v. Sugandhi Aggarwal (2024), the Court reiterated the importance of prioritising the child’s welfare while determining custody-related issues. The judgment reinforces the principle that custody decisions must be guided by the child’s needs and circumstances rather than merely by the claims of either parent. Similarly, in Arathy Ramachandran v. Bijay Raj Menon (2025), the Supreme Court examined an interim custody arrangement involving two minor children and modified the existing arrangement after considering their individual needs and circumstances.
The decision illustrates that dividing a child’s time equally between parents is not necessarily the best solution in every case. Instead, the court must adopt an arrangement that supports the child’s emotional security, development, and overall welfare.
Interim custody is particularly important when parents are living separately and cannot agree on where the child should reside while the divorce case is pending. In such circumstances, either parent may approach the court and request a temporary custody order. Depending on the facts, the court may grant custody to one parent while allowing the other parent meaningful visitation or parenting time, including weekend visits, holiday arrangements, and video calls.
These arrangements help maintain the child’s relationship with both parents, wherever appropriate and consistent with the child’s welfare. The court may also modify its orders if circumstances change or the existing arrangement no longer serves the child’s best interests.
In conclusion, a parent can seek child custody before a divorce is granted under Indian law. Section 26 of the Hindu Marriage Act, 1955, provides a direct legal basis for seeking appropriate interim orders in matrimonial proceedings, while the Guardians and Wards Act, 1890, provides additional remedies where applicable.
The law recognises that a child’s needs cannot always wait for lengthy divorce proceedings to conclude. Ultimately, child custody is not about one parent winning against the other; it is about ensuring that the child continues to receive care, stability, affection, and emotional support during a difficult phase of family life. Every case is different, and the court’s decision will depend on the circumstances and what best protects the child’s interests.
Written By: Adv. Vibhuti Zibbu
Date: 16-Oct-2026
