Child custody is not exactly defined any where in Indian Law. The word used in the Indian Law is “Guardian” defined in Guardian and Ward Act,1890 as a person having care of the person of a minor or of his property or both. For practical purposes, it is a relationship between a parent or guardian and a child in that person’s care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child.
Though as per Hindu Minority and Guardianship Act, 1956, father is the natural guardian of a child, but the courts have largely interpreted the welfare of the child as the guiding principle in deciding the child custody cases in India
Judges decide custody based on “the best interests of the child.” The “best interests of the child” law requires courts to focus on the child’s needs and not the parent’s needs.
In cases of transnational marital discords involving child custody, the Hague treaty requires contracting states to send back the runway parent and child to the child’s ‘habitual residence’.
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member country to another. But India is not a signatory of Hague Convention.
A committee set up by the Centre to prepare a report on the issue of inter-country parental child abduction has questioned one of the basic principles of the Hague Convention by arguing that the return of the child to his or her habitual residence may not necessarily be in the best interest of the child.