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If Wife Expire After Divorce Who Will Get Child Custody

  • Writer: lead India
    lead India
  • Mar 31, 2023
  • 3 min read

If a marriage fails and a child's parents separate, this will have a significant impact on the child's upbringing. One of the parents is given custody of the kid, and when deciding who will have custody, the child's welfare is given priority.


Child custody refers to the parental rights and obligations for the upbringing of their kid or children. Custody, as it is widely understood, refers to guardianship, which is the process of fostering a child's overall development through upbringing or parenting.


The child or children born out of the marriage suffer the most if a marriage fails and leads to the couple's separation. The wellbeing of the kid is given first priority by Indian law when deciding who obtains custody of a minor child, even though the parent's entitlement to custody is still taken into account.


Child custody is a topic that comes up during divorce or judicial separation processes. The process of regulating, caring for, and maintaining a kid under the age of eighteen by the custodial parent (the rights have been awarded by the court) within the confines of predetermined standards such as financial stability, compatibility with the child, way of life, etc.


Legal Provisions:

  • Regardless of the kid's affiliation with a particular faith, India's Guardians and Wards Act, 1890, regulates and addresses matters related to child custody and guardianship. India, a secular country, adheres to a variety of religions, including Hinduism, Christianity, Islam, and Parsi. As a result, every religion has its own set of rules for child custody that specify how parents can apply for custody of their children.

  • Under Hindu Law, custody

  • The reforms and rules established for requesting child custody are described in the laws linked with Hindu law, namely Section 26 of the Hindu Marriage Act of 1955, Section 38 of the Special Marriage Act of 1954, and the Hindu Minority and Guardianship Act of 1956.

  • Hindu Marriage Act, 1955, Section 26, This section addresses the upkeep, instruction, and care of a kid and establishes the child's custody if both parents practice Hinduism.

  • The Special Marriage Act of 1954's Section 38, The Section upholds the child's custody even if the parents practice different religions or got married in a legal ceremony.

  • According to Sections 26 and 38, the court may issue temporary orders, judgements, revisions, etc. regarding the child's maintenance at any time and may resolve a pending decree within 60 days of the day notice was served

  • Act of 1956 on Hindu Minority and Guardianship

  • Only biological parents—not stepparents—are permitted to apply for custody of their minor child under this Act, and only if the child is a Hindu.

  • custody according to Islamic law

  • According to Muslim law, only the mother or any other females (maternal grandmother, maternal great grandmother, maternal aunt and great aunt, full sister, uterine sister, consanguine sister, paternal aunt) hold the ultimate right to seek her child or children's custody under the Right of Hizanat up until the point that she is not found guilty of any wrongdoing. Muslim law states that a kid's mother or other female family members have custody of them until the child reaches the age of seven for boys and the age of puberty/majority for girls.

It might be challenging to decide who will get custody of a kid after the death of the custodial parent. The following possibilities, however, are those who might be given the opportunity to be the child's guardians in the future and custody of the child under hypothetical circumstances.

  • Biological parent not in custody

  • Grandparents

  • Nearest relatives

The desire and happiness of the child or children should be the parents' top priority because custody disputes are already traumatic and draining events for a child to go through. Courts must make custody decisions on what is best for the child.


Courts must prioritize the requirements of the kid, not the wants of the parents, in accordance with the best interests of the child statute. According to the law, the court must award custody to the parent who can best care for the child.


Child Custody Lawyers in Mumbai can be appointed if the case has been filed in Mumbai. Moreover, Family Lawyers in Mumbai can also be appointed. Mumbai high court lawyers can also be consulted.


We provide a variety of legal and professional services at Lead India. This is the place to ask a legal question. Talk to a lawyer for the best advice in this case. You can trust our legal team to help you make informed decisions. We also provide free legal advice online.



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