The laws applicable

Most of the law concerning guardianship and custody is contained in the secular Guardians and Wards Act (GWA), enacted in 1890. This law applies to all Indians, irrespective of the religious community that they belong to. This law is supplemented by principles stated in The Hindu Minority and Guardianship Act (HMGA), enacted in 1956, which applies to Hindus only.

These two laws become applicable if custody is claimed when no other matrimonial proceedings (such as divorce, judicial separation etc.) have been filed. In addition, all the marriage / divorce laws (except the Dissolution of Muslim Marriages Act) provide for custody of minor children. So, if a matrimonial proceeding is filed in court, custody of the child can be claimed in addition in the same proceedings.

Difference between guardianship and custody
Guardianship involves looking after the physical placement of a minor as well as the minor's property. Custody is concerned only with the issue of taking physical care of the minor, and not the property.

Natural guardian
All the relevant laws contain the traditional notion of father as the natural guardian of the child, having absolute rights over the child. In recent times, the courts have modified this principle to an extent, based on the principle of gender equality, so now mothers are also viewed as natural guardians of the child. Moreover, the courts have given primary importance to the welfare of the child. A father does not have an automatic 'right' to custody merely because he is the natural guardian. The laws also state that in the case of an unwed mother, she would be the natural guardian of the child.

The welfare principle
The welfare principle is well-established. What this essentially means is that while deciding to award custody of the child to either parent (or any other person), the courts would ask themselves the question: "In whose custody would the child's welfare be best taken care of?" The welfare principle is more important than the rights of parents, though the courts' rulings often reflect deeply ingrained societal biasis/notions of what the child's best interests are. So, irrespective of the age or sex of child, or the personal law that is applicable, what you need to prove in court for getting the custody of your child, is that you will be able to best look after the interests and needs of your child, more than anybody else.

Most importantly, ensure that you have engaged the services of a lawyer who has experience in dealing with divorce and custody issues, who is open and frank in communication, and whose judgment you trust.