If the father already has the child in his care (interim/actual custody) and wants permanent, exclusive custodial rights, he can approach the competent court under the following laws:
1. File a Petition Under the Guardians and Wards Act, 1890 (GWA)
Section 7 – Application for Appointment as Guardian
The father can file a petition before the District Court / Family Court seeking to be declared the:
- Guardian of the person of the minor, and
- Permanent custodian of the child
The court examines what is in the best welfare of the child.
Key Factors Court Considers:
- Child’s emotional, physical, educational welfare
- Father’s financial stability
- Father’s capacity to provide safe home & upbringing
- Mother’s ability/inability to care for the child
- Wishes of the child (if above 9 years, court may consider)
- Any history of violence, neglect, addiction, or instability in the mother
2. Seek “Permanent Custody” Under the Hindu Minority & Guardianship Act, 1956 (HMGA)
If the parties are Hindu, the father may additionally claim under:
Section 6 & 13 – Natural Guardian + Welfare of Child
Father is a natural guardian (after the mother), but the child’s welfare overrides all rules.
The court may grant him sole custody if welfare favors the father.
3. If the Child is Already Living With the Father
This is a strong factor.
He can request:
Confirmation of existing custody
Permanent custody order
Conditions for mother’s visitation (if required)
Court generally does not disturb a stable, healthy custody arrangement.
4. If Mother Abandoned the Child or Not Taking Responsibility
The father may additionally seek:
Declaration that mother is unfit (only if there is evidence)
Restriction or supervision of her visitation rights
Sole decision-making authority regarding education, health & travel
5. Filing Procedure
- Draft & file Guardianship and Custody Petition
- Attach evidence:
- School records
- Medical records
- Proof of father’s income/stability
- Proof mother is not taking responsibility (if applicable)
- Court issues notice to mother
- Court conducts hearing, interviews child (if applicable)
- Final order granting sole permanent custody
6. Landmark Judgments Supporting Sole Custody to the Better Caregiver
Here are important judgments where courts gave sole custody to one parent on welfare principle:
1️. Gaurav Nagpal v. Sumedha Nagpal (2009)
Supreme Court held → Child’s welfare is supreme, not the right of parents.
2️. Roxann Sharma v. Arun Sharma (2015)
Court emphasized → Custody must go to the parent providing a more stable & safe environment.
3️. Vivek Singh v. Romani Singh (2017)
Court allowed sole custody to the parent with proven emotional bonding.
4️. J. Venkatachalam v. J. Saritha (Madras HC)
Child already living with one parent → Court usually continues that custody.
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