Family Law

In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. The legal provisions that exist in the Indian Constitution based on religion are:

• Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38), and the Hindu Minority and Guardianship Act 1956.
• Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
• Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
• Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to the welfare of the child.

In mutually consent divorce, spouses should decide amongst themselves who is going to have the physical custody of the children, duration of visitation rights, and interim custody. Both parents are equally competent to take custody of the children. It is the understanding and agreement between parties, which prevails subject to the welfare of the minor children. Parties can have an understanding of joint custody or shared parenting in the mutual consent divorce process.

In the above case, you and your wife should decide amongst yourselves who is going to have the physical custody of the children, duration of visitation rights, and interim custody. Both of you are equally competent to take custody of the children.

Hope it helps, 

Regards, 

Srishti