Child & Family Rights: Our Advisory Services

Child Custody & Visitation Rights

Child custody in India is governed by the Guardians and Wards Act 1890 and, for Hindu families, the Hindu Minority and Guardianship Act 1956. Courts determine custody arrangements on the basis of the child’s best interests– considering the child’s age, the nature and quality of the relationship with each parent, the stability of the proposed living environment, educational needs, and (for older children) the child’s own expressed preferences. Custody may be sole, where one parent has primary care and residence, or joint, where both parents share parenting responsibilities. Visitation rights are typically granted to the non-custodial parent unless the circumstances make contact contrary to the child’s welfare. In contested custody proceedings, interim custody orders are frequently required to establish a stable arrangement while the substantive case is heard. Enforcement of existing custody orders is also managed when a parent fails to comply with court-directed arrangements.

Child Support & Maintenance

A parent’s obligation to maintain their child is recognised across all personal laws in India and applies regardless of the circumstances of the matrimonial breakdown. Applications for child maintenance may be made under Section 125 of the Code of Criminal Procedure 1973, which applies to persons of all religions and is the most commonly used route, or under the applicable personal law. The amount is determined by the court having regard to the paying parent’s income and means, the child’s established standard of living, educational and medical needs, and any special requirements. Maintenance orders are not permanent– either party may apply for variation when there is a material change in circumstances, such as a significant change in the paying parent’s income or the child starting a new educational programme. ATB Legal manages such maintenance application processes from quantum assessment and affidavit preparation through to court representation and enforcement.

Guardianship Laws in India

Legal guardianship under the Guardians and Wards Act 1890 is distinct from custody and serves a different function, it confers the legal authority to manage a minor’s person and property on behalf of the child. A formal court-appointed guardianship order is required for managing inherited property on behalf of a minor, operating a bank account in the child’s name, giving legally valid consent for medical treatment when the natural guardian is unavailable or incapacitated, or executing documents on the child’s behalf. For NRI families, guardianship orders issued by Indian courts are also required to manage India-based assets– including property, fixed deposits, and shares– on behalf of a minor child ordinarily resident abroad. ATB Legal files guardianship petitions before the appropriate Family Court, manages the hearing process, and coordinates with financial institutions and property registrars following the order.

Parental Rights & Disputes

Parental rights disputes extend beyond custody and may arise independently of divorce proceedings. Where one parent seeks to relocate permanently with a child– particularly abroad– court permission is required and the application is assessed on the child’s welfare, not the relocating parent’s convenience. International travel by a minor typically requires both parents’ consent, and where this is withheld unreasonably, a court order can be sought. Passport applications for minor children also require both parents’ consent or a court order where one parent refuses. ATB Legal advises on contested parental rights matters, relocation applications before Family Courts, and the recognition and enforcement of Indian custody orders in foreign jurisdictions, including the UAE– an area where the absence of a bilateral Hague Convention arrangement requires a different enforcement strategy than NRI clients often expect.