By S&S Co. Advocates & Solicitors · Published 16 October 2026 · Informational content, not legal advice: see our disclaimer
Parents fighting over custody often walk into court believing the case turns on who loves the child more, or who the child says they want to live with. Judges hearing these matters look at a wider and more mundane set of facts: school continuity, who has actually been doing the daily caregiving, financial stability, the home environment, and whether either parent has shown conduct, such as concealment or defiance of existing orders, that bears on their fitness to have custody. The welfare of the child is the test every court repeats, but welfare is assessed through this evidence, not through declarations of affection made from the witness box.
The Supreme Court reinforced this in Arathy Ramachandran v. Bijay Raj Menon, decided in April 2025, holding directly that sincerity, love and affection shown by either parent cannot by themselves decide custody. This guide sets out how custody petitions actually proceed under the Guardians and Wards Act, 1890, what evidence matters, and what parents on either side of such a dispute should prepare for.
Which law applies and where to file
Custody disputes for Hindu parents can proceed either under Section 26 of the Hindu Marriage Act, 1955, as an ancillary application within a pending or concluded matrimonial case, or as an independent petition under the Guardians and Wards Act, 1890, which applies regardless of the parents' religion and is the route generally used where there is no matrimonial proceeding or where the parents were never married. A petition under the Guardians and Wards Act is filed before the district court having jurisdiction where the child ordinarily resides, which is a factual question courts look at closely when one parent has recently relocated the child specifically to establish a favourable jurisdiction.
Where a matrimonial case is already pending, filing the custody application within it is usually faster, since the same court already has the parties and much of the background before it, rather than starting a fresh guardianship petition that has to establish the relationship and background again from the beginning.
What the Supreme Court actually said about love and welfare
In Arathy Ramachandran, a three-judge bench held that welfare of the child remains the paramount consideration in any custody dispute, but clarified that the mere fact that one parent demonstrates greater affection or emotional warmth during proceedings cannot, by itself, decide the question. Courts are directed to look instead at the totality of circumstances: stability of the child's routine, continuity of education, the capacity of each parent to provide a secure and consistent environment, and the practical realities of caregiving arrangements that have actually existed.
The same line of recent rulings has also flagged that repeatedly shuffling a child between parents on a short rotation, sometimes done in an attempt to be fair to both sides, can itself harm the child's physical, mental and emotional wellbeing, and courts are now more willing to settle on a stable primary arrangement with defined visitation rather than splitting custody evenly as a default compromise.
Conduct that courts take seriously
A parent's conduct toward the other parent and toward existing court orders carries real weight. Courts have treated concealment of a child's location, removing a child from a jurisdiction in defiance of an existing custody or visitation order, or misleading a foreign court about a child's whereabouts as material factors that count against the parent responsible, even where that parent otherwise appears to be a capable caregiver. A 2025 ruling involving cross-border custody specifically weighed a mother's concealment of a child's presence in India against an existing foreign court order favouring reunification, and granted interim custody to the father on that basis while directing that final guardianship be decided under the Guardians and Wards Act.
Alienating a child from the other parent through persistent negative comments, blocking communication such as scheduled calls or visits, or coaching a child's statements to a court-appointed counsellor are all conduct a court will probe, usually through an independent interview of the child by the judge in chambers or a report from a court-appointed child welfare expert rather than relying on either parent's account.
The child's own preference: when it matters and when it does not
Indian courts give weight to a child's preference, but the weight increases with the child's age and apparent maturity, and courts remain alert to the possibility that a child's stated preference has been shaped by one parent rather than freely formed. A child old enough to articulate reasons, generally in the early teens or older, is more likely to have that preference taken seriously, while a younger child's stated wish is treated with considerably more caution and is rarely determinative on its own.
Courts typically take this preference through an in-chambers interview conducted by the judge directly, without either parent or their counsel present, precisely to reduce the chance that the child's answers reflect coaching or anxiety about disappointing a parent who may be present. Parents should resist the temptation to prepare a child for this interview, since judges are generally experienced at identifying rehearsed answers, and a child who appears coached can damage the credibility of the parent perceived to have coached them.
Interim custody and why it matters so much
A final custody petition under the Guardians and Wards Act can take a long time to conclude, and an interim custody order passed early in the case often ends up shaping where the child actually lives for years, even before the final order is passed, simply because courts are reluctant to disturb an arrangement the child has settled into. This makes the interim stage of the proceeding, not merely the final hearing, the point where both sides should be presenting their strongest evidence on stability, schooling and caregiving history.
A parent who is not currently the primary caregiver but believes the existing arrangement was established through concealment, removal of the child without consent, or some other improper conduct should move for interim custody promptly rather than waiting for the final hearing, since delay itself tends to reinforce the status quo in the court's eyes regardless of how that status quo came about.
Evidence and documentation that actually helps
School records showing attendance and continuity, medical records showing which parent has historically taken the child for appointments, a clear account of the daily routine including who drops and picks up from school, and financial records demonstrating the capacity to provide stable housing and education all carry more weight in practice than character testimony about affection. Where a parent alleges misconduct by the other, such as substance abuse, violence, or neglect, that allegation needs independent corroboration, such as police records, medical reports or witness statements from neutral parties, since bare allegations between contesting spouses are given limited weight on their own.
A parent genuinely seeking the child's welfare rather than a tactical advantage should also be prepared to propose a realistic, detailed visitation schedule for the other parent, since courts view a parent who proposes no meaningful contact for the other side with some suspicion, reading it as evidence of an agenda beyond the child's interest.
Frequently Asked Questions
Does showing more love for the child help win a custody case?
Not by itself. The Supreme Court in Arathy Ramachandran specifically held that sincerity, love and affection shown by either parent cannot alone decide custody. Courts look at stability, caregiving history, schooling continuity and conduct instead.
At what age does a child's preference about custody matter?
There is no fixed age, but courts give increasing weight to preference as a child grows older and more articulate, generally from the early teens onward. A younger child's stated wish is considered but treated cautiously and is rarely decisive on its own.
Can one parent relocate the child to another city and then claim custody there?
Courts look closely at whether a move was made specifically to establish a favourable jurisdiction or to remove the child from the other parent's reach. Such conduct, especially if it defies an existing order, is treated as a factor against the parent who did it, not as a basis for securing custody.
How long does a custody case under the Guardians and Wards Act typically take?
It varies widely by jurisdiction and contest level, and final decisions can take years in heavily contested matters. This makes the interim custody order, passed early in the case, practically decisive in many cases since courts are reluctant to disturb a settled arrangement later.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Guardians and Wards Act, 1890
- Section 26, Hindu Marriage Act, 1955
- Arathy Ramachandran v. Bijay Raj Menon, 2025 INSC 587, Supreme Court, April 2025