Child Custody Battles in India: How Divorce Affects Children’s Welfare
By Adv Pushkar Patil (BSL. LL.B, LL.M(UK), DCL, DHL)
Pune, 1st September 2025: The concept of marriage in India is considered to be sacred. Couples are made in heaven, they say. There are a lot of emotions attached to the families of the bride and bridegroom. A lot of money is invested, and ultimately, the marriages come into existence.
Fast forward to the next step of family planning and the journey towards having a ‘Baby’ comes with another set of emotions coupled with a lot of money spent towards medical expenses. Ask any couple that is holding their babies, how was the experience so far, and you shall see their tired faces still smiling. You will realise that the money spent towards the entire process appears very little in front of their happy faces. That’s where you know how having a baby changes everything in life. Some balance out their lives, some forget their priorities. The people in an unhealthy marriage ultimately end up in the Court facing each other for nothing less than Divorce. And then starts the Battle of Custody for the Child.
Every year, thousands of couples file for Divorce. Some end up with Mutual Terms, while some end up contesting the cases. In most cases, the ‘wife’ files multiple cases under multiple laws such as the ‘Quasi-Civil Application under the Protection of Women from Domestic Violence Act, 2005’, the Cruelty to wife criminal complaint Sec. 85 of the BNS (Sec. 498A of the IPC), maintenance case under Sec. 144 of the BNSS (Sec. 125 of CrPC), Civil injunction suit under the Civil Procedure Code against the husband and in-laws, coupled with a Divorce Petition under various grounds of cruelty, coupled with the Interim maintenance applications and other interim reliefs. Some may not explore all the remedies, but as it is believed, some end up with “Advocate’s Advice” and in most cases, wives are advised to do so, to create the so-called “pressure” of the In-laws. Do we not see and read such cases on a daily basis? Are not quick to judge the “In-laws” too soon. What if the cases and petitions turn in favor of the In-laws? Well, we seldom pay attention to that, don’t we?
However, in all the disputes, the couples that have a Child, unnecessarily become the centre of point being labeled as the “disputed living property”. The husband and wife, both explore the law of Custody of Child in various laws such as the Hindu Marriage Act, The Guardians and Ward Act, the Hindu Minority and Guardianship Act, etc. In all these laws, the “Welfare” of a child is of the paramount importance and everything short of the “Welfare” is debatable. Surprisingly, in legal drafts too the child is often referred to as the “Issue” beforehand.
However, considering the factor of “Age and Gender” of the Child, the child is more often given in the custody of the mother. The father becomes the deemed “Predator” which of course is a dangerous precedent to be followed. A bad husband need not always necessarily be a bad father, similarly, what if the wife in whose custody the child is given is a bad mother? Those parameters will ultimately differ from case to case. The general principle that the child is safe in the custody of the mother is still followed even today despite several pieces of evidence that do not work in any case for the welfare of the child. Keeping aside the very “Welfare” and mental health of the Child, the mental health of the suffering parent also takes a hit, and the couple end up in a war of Ego, where the only purpose of the parties is to win the battle of custody.
And in this battle, the child suffers, the parent who is denied the Custody and Visitation suffers, the emotional bond is lost, the feelings and the phase of being the parent is lost and the child becomes the weapon of attack in this strange battle. Also, considering the pendency of several petitions, many times, the interim application of custody takes a lot of time to be decided and the time taken for disposal of the entire petition can never be foreseen in hindsight. In any case however, the interim custody as a factor of welfare is deemed to be that with the mother, considering the warmth that the love of mother has. Of course, the Court has the discretion to call upon the Child to be produced before itself and it is asked with whom it wishes to reside.
But by the time the child is brought before the court, the present custodian (Either father or mother), is tutored, taught and brainwashed against another parent. But naturally, the child under influence would never be able to truly state the affection it has for another parent. But in any case, however, the warmth, love and emotion of the parent that loses custody, is lost. Remember, the law was for the ‘Welfare’ of the child, and perhaps in the long-lost battles in Court between the couples, the ultimate party to lose is the “Child”.
Parents appearing before the Courts need to be considerate, compassionate and mature towards the concept of welfare of Child. The Courts often require support of the counsellors, mediators and even the respective Advocates to work in the welfare of the “Child in dispute”. Perhaps the regular visitation rights can be a way out to keep the suffering parent in contact with the Child, but the true remedy will always be an arrangement of Joint Custody.
(The article is based upon the experience of matters handled by the author and in no way means to demean the parents or child to any extent, the author has merely tried to explain the purpose of the Battle of Custody where the ultimate goal is work for the welfare of the child).
