Child Custody in Hyderabad: How the Family Courts Decide

When parents separate, the question of who the children live with, and how the other parent sees them, can be decided by agreement or by a court. This guide explains the laws that apply in Hyderabad, what the court weighs, where and how to apply, temporary custody, visits, and what the Supreme Court has said about the child’s welfare.

The laws · What the court weighs · How to apply · Temporary custody and visits · Hindu law · Other communities · Family courts in Hyderabad

The laws that apply

• Guardians and Wards Act, 1890: applies to minors of all communities. Its operative sections carry no religious restriction, and it preserves any power to appoint a guardian that is valid under the minor’s own personal law (section 6).
• Hindu Minority and Guardianship Act, 1956: applies to Hindus, Buddhists, Jains and Sikhs (and others domiciled in India who are not Muslim, Christian, Parsi or Jew, unless shown not to be governed by Hindu law), including Hindus domiciled in India who live abroad, but not to members of a Scheduled Tribe unless the Central Government directs otherwise (sections 1(2) and 3). It is in addition to the Guardians and Wards Act (section 2).
• Hindu Marriage Act, 1955, section 26: in a divorce or other case under that Act, the court can make orders on the custody, maintenance and education of minor children.
• Protection of Women from Domestic Violence Act, 2005, section 21: a Magistrate can grant temporary custody in a domestic violence case.

What the court weighs

Under section 17 of the Guardians and Wards Act, the court is guided by what, consistently with the law that applies to the minor, appears to be for the minor’s welfare. In deciding that, it considers:

• the age, sex and religion of the minor;
• the character and capacity of the proposed guardian, and how closely related they are to the minor;
• the wishes, if any, of a deceased parent;
• any existing or previous relations between the proposed guardian and the minor or the minor’s property.

If the minor is old enough to form an intelligent preference, the court may consider that preference (section 17(3)). For Hindu minors, section 13 of the Hindu Minority and Guardianship Act says the welfare of the minor is the paramount consideration, and that no one is entitled to guardianship under that Act if the court thinks it will not be for the minor’s welfare.

In Nil Ratan Kundu v Abhijit Kundu (Civil Appeal No. 4960 of 2008, decided 8 August 2008), the Supreme Court said:

• the controlling consideration in custody cases is the welfare of the children, not the rights of their parents;
• the test is not the “negative” one of whether the father is unfit, but the “positive” one of whether giving custody would be in the child’s welfare, whether to the father, the mother or any other guardian;
• the court gives weight to the child’s comfort, contentment, health, education, intellectual development and favourable surroundings, and moral and ethical values are equally or more important;
• normally, the court should find out the child’s wishes before deciding custody, and if the child is old enough to form an intelligent preference, the court must consider it, though the final decision rests with the court;
• where a writ of habeas corpus is sought for the custody of a minor, the paramount consideration for the court is also the welfare of the child.

The outcome of any case depends on its own facts.

How to apply

• Who can apply: the person who wants to be, or claims to be, the guardian, any relative or friend of the minor (which can include a grandparent), or the Collector (section 8).
• Where: an application for guardianship of the minor’s person goes to the court for the place where the minor ordinarily resides (section 9). Where a Family Court has been set up for an area, cases about guardianship of a child’s person, custody and access that would otherwise go to a district or civil court go to the Family Court (Family Courts Act, sections 7(1) and 8). Hyderabad and Ranga Reddy have family courts (see below).
• What it contains: the minor’s name, sex, religion, date of birth and ordinary residence, who has custody now, the near relatives, any earlier applications, and the reasons, with the proposed guardian’s declaration of willingness, signed by them and attested by at least two witnesses (section 10).
• Notice: the court gives notice of the hearing to the parents if they live in India, to the person who has custody, to the proposed guardian (unless that person is the applicant) and to anyone else the court thinks should be notified (section 11), and then hears evidence (section 13).
• Parent living and fit: the court will not appoint a guardian of the person of a minor (other than a married female) whose father or mother is living and is not, in the court’s opinion, unfit to be the guardian (section 19, as amended in 2010).
• Joint guardians: where the minor’s personal law allows, the court can appoint two or more joint guardians (section 15); if they disagree on a question affecting the child’s welfare, any of them can ask the court for directions (section 43).

In a divorce or other case under the Hindu Marriage Act, custody can be decided in that same case under section 26, by interim orders while it is pending and by provisions in the decree, consistently with the children’s wishes wherever possible. The court can later revoke, suspend or vary those orders.

Temporary custody, visits and removal

• Temporary custody: while a Guardians and Wards Act case is pending, the court can direct the person who has the child to produce the child, and can make any order it thinks proper for the temporary custody and protection of the child (section 12).
• Domestic violence cases: at any stage of a domestic violence case, the Magistrate can grant temporary custody of the children to the woman (or the person applying on her behalf) and set arrangements for visits by the respondent, but must refuse a visit that the Magistrate thinks may be harmful to the children’s interests (section 21). This relief can also be sought in a civil, family or criminal case between the same parties (section 26).
• Return of the child: if a child leaves or is removed from the custody of the guardian of the child’s person, the court can order the child’s return if it thinks that is for the child’s welfare (section 25).
• Taking the child away: a guardian appointed or declared by the court (other than the Collector or a guardian appointed by will or other instrument) cannot take the child outside the court’s jurisdiction without its leave, except for prescribed purposes (section 26).

The Family Courts Act lets the court seek help from a medical expert or a person professionally engaged in promoting family welfare (section 12) and receive any report or information that helps it decide (section 14).

Hindu law: natural guardians

Under section 6 of the Hindu Minority and Guardianship Act:

• for a boy or an unmarried girl, the natural guardian is “the father, and after him, the mother”, but the custody of a child under five years “shall ordinarily be with the mother”;
• for an illegitimate boy or unmarried girl, the mother, and after her, the father;
• a step-parent is not a natural guardian, and a person who has ceased to be a Hindu, or has completely and finally renounced the world as a hermit or ascetic, cannot act as a natural guardian.

Being a natural guardian does not override the child’s welfare: the Supreme Court in Nil Ratan Kundu, referring to its earlier decision in Surinder Kaur Sandhu, said section 6 cannot supersede the paramount consideration of the minor’s welfare. A natural guardian also cannot mortgage, charge, sell, gift, exchange or otherwise transfer the child’s immovable property, or lease it for more than five years or beyond one year after the child turns 18, without the permission of the court named in section 8(6) (the city civil court, district court, or a court empowered under section 4A of the Guardians and Wards Act, where the property is).

Other communities

The Hindu Minority and Guardianship Act does not apply to Muslim, Christian, Parsi or Jewish children. A guardianship or custody application can be made under the Guardians and Wards Act, and the court decides welfare consistently with the law that applies to the minor (section 17(1)). Other laws may also provide for custody in a particular case.

Under section 6 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, where a husband pronounces talaq as defined in that Act (talaq-e-biddat or a similar form of instant and irrevocable talaq, which section 3 declares void), the married Muslim woman is entitled to custody of her minor children, in the manner the Magistrate decides.

Appeals

A Family Court’s final orders, other than those passed with the parties’ consent, can be appealed to the High Court. The Family Courts Act allows 30 days for an appeal, from the date of the judgment or order (section 19(3)); the Hindu Marriage Act allows 90 days for appeals under that Act (section 28(4)). Because the two periods differ, take advice promptly after any Family Court order and work to the 30-day period. An order of a Magistrate under the Domestic Violence Act can be appealed to the Court of Session within 30 days from the date it is served (section 29 of that Act).

Family courts in Hyderabad

Under the Family Courts Act, the family court is to try first to bring about a settlement (section 9), must hold proceedings in camera if either party wishes (section 11), and no party is entitled as of right to be represented by a lawyer; the court may seek the help of a legal expert as amicus curiae (section 13).

• Hyderabad: the Principal Family Court and Additional Family Courts sit in the Integrated Family Court Complex, Kalpataru Building, Purna Haveli, Chatta Bazar, Hyderabad 500002, opened on 18 March 2023. The court’s website says the complex has a creche for children and a psychology centre.
• Ranga Reddy: the Family Court and Additional Family Court are listed at L.B. Nagar (the district court complex is at NTR Nagar, L.B. Nagar 500074), and an Additional Family Court for Cyberabad sits at Kukatpally.

Free legal aid

Under section 12(c) of the Legal Services Authorities Act, 1987, every woman and child who has to file or defend a case is entitled to free legal services, without an income test, if the legal services authority is satisfied that there is a prima facie case (section 13). Others, including fathers, may qualify under other clauses, such as low income (section 12(h)).

Related guides: family and divorce, maintenance in Hyderabad, mutual consent divorce and domestic violence cases.

For a discussion about a custody matter with Musab Hashmi & Associates, call +91 89771 24916 or send an enquiry. Do not include identity numbers or copies of documents in the first message.

General legal information, not legal advice. Checked on 26 October 2026 against the Guardians and Wards Act, 1890 (with section 19 as amended by the Personal Laws (Amendment) Act, 2010), the Hindu Minority and Guardianship Act, 1956, the Hindu Marriage Act, 1955, the Family Courts Act, 1984, the Protection of Women from Domestic Violence Act, 2005, the Muslim Women (Protection of Rights on Marriage) Act, 2019, the Legal Services Authorities Act, 1987, the Supreme Court’s judgment in Nil Ratan Kundu v Abhijit Kundu (official copy), and the official websites of the Hyderabad (26 October 2026) and Ranga Reddy (25 October 2026) district courts.