Child custody in Ghaziabad: the Guardians and Wards Act, Section 26 HMA and visitation

The court

The Family Court, Ghaziabad, for a child who ordinarily lives in the district (Section 9(1) Guardians and Wards Act; Section 7 Family Courts Act).

Divorce pending

Custody is asked for in that case under Section 26 of the Hindu Marriage Act, with interim orders while it runs.

The test

The welfare of the child (Section 17 GWA; Section 13 HMGA). A child under five ordinarily stays with the mother (Section 6(a) HMGA).

Child taken away

A petition for return under Section 25 GWA, or habeas corpus in the Allahabad High Court where the holding is illegal.

Parents who have separated, or are about to, usually ask three things: which court, who gets the child, and when the other parent can meet the child. This page answers them for a child who lives in Ghaziabad. The page on a divorce in Ghaziabad covers the case custody is often part of, and the where-to-file tool works out the court from where the child lives.

Two routes: inside the divorce case, or a guardianship petition

If the parents already have a case under the Hindu Marriage Act, whether for divorce, judicial separation or restitution of conjugal rights, custody is decided in it. Section 26 lets that court pass interim orders from time to time, and provide in the decree, for the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and vary them later. The Allahabad High Court has held that Section 26 gives no independent right: it works only inside a proceeding under the Act (Arun Lata v. Civil Judge, AIR 1998 All 29).

Without a pending case, the petition is under the Guardians and Wards Act, 1890, which applies to children of every religion. The court may appoint or declare a guardian of the child's person, and order the return of a child removed from the custody of a guardian (Section 25). In deciding, it applies the law to which the child is subject, so for a Hindu child it reads the Act with the Hindu Minority and Guardianship Act, 1956. Under Explanation (g) to Section 7 of the Family Courts Act, 1984, both routes lead to the Family Court.

Which court: where the child ordinarily resides

A petition about the guardianship of a child's person goes to the court for the place where the child ordinarily resides (Section 9(1) GWA). For a child who ordinarily lives in Ghaziabad district that is the Family Court in the District Court campus at RDC Raj Nagar; the court guide has the court rooms. Ordinary residence is the only test, and it is mainly a question of intention and fact. In Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479, the Supreme Court held that where both parents had decided where the child would live, one parent reversing that decision alone could not change the child's ordinary residence. Taking a child to another city does not by itself choose the court.

What the court weighs

Welfare of the child decides custody, not the rights of either parent. Section 17 of the Guardians and Wards Act tells the court to be guided by what appears to be for the welfare of the child, considering the child's age, sex and religion, the character and capacity of the proposed guardian, nearness of kin, the wishes of a deceased parent and the existing relations of the child with the proposed guardian. If the child is old enough to form an intelligent preference, the court may consider it (Section 17(3)); the Supreme Court has said it must, though the final decision rests with the court (Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413). For a Hindu child, Section 13 of the Hindu Minority and Guardianship Act makes welfare the paramount consideration.

Under Section 6(a) of that Act the father, and after him the mother, is the natural guardian of a son or an unmarried daughter, but custody of a child who has not completed five years shall ordinarily be with the mother. The Supreme Court has read this as a presumption in the mother's favour, which puts on the father the burden of showing that her custody is not in the child's welfare (Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318). In practice the court looks at who has looked after the child day to day, schooling and health, each parent's home and working hours, the support of grandparents, and whether a parent has kept the child from the other. Money is one factor among these, not the deciding one.

Interim custody and visitation while the case runs

A custody case can take time, so the first order is usually an interim one: who keeps the child for now, and when the other parent meets the child. Under Section 26 HMA the court can pass interim orders in a pending divorce case, and under the Guardians and Wards Act the Family Court can make interlocutory orders for producing the child and for the child's interim protection. Visitation is set in these orders. The Supreme Court has said that a court giving custody to one parent must give visitation to the other: usually weekends where both live in the same town, longer holidays where they live far apart, and video calls besides (Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67). The Allahabad High Court has upheld a Family Court order under Section 12 GWA giving a father video calls four days a week (Sapna Dwivedi v. Upendra Kumar Dwivedi, 2023:AHC:202746).

In the Allahabad High Court an interim custody or visitation order of this kind is treated as interlocutory, so no appeal lies against it under Section 19 of the Family Courts Act (Ishita Agarwal v. Gopal Krishan Mittal, 2026:AHC:34801-DB). If a parent does not produce the child as the Family Court directs under Section 12, or return the child under Section 25, Section 45 GWA lets the court fine that parent and detain them in civil prison until they comply; the High Court has sent a Ghaziabad parent back to that remedy (Bishwajit Chowdhury v. Mona Saluja, 2023:AHC:171626).

If the child has been taken away

If the child was in your lawful custody and the other parent took the child, the Family Court can order the child returned under Section 25 of the Guardians and Wards Act. Where holding the child is without authority of law, a writ of habeas corpus can be filed in the Allahabad High Court. The Supreme Court has held the writ maintainable even where the child is with the other parent, decided on the welfare of the child (Yashita Sahu, above), and has also said that where the facts need a full inquiry the High Court may send the parties to the Family Court (Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42).

A child brought to Ghaziabad from another country raises a separate question. The Supreme Court noted in Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, that India has not signed the 1980 Hague Child Abduction Convention, so the court here decides on the child's welfare, and may order a prompt return where the case comes soon after the removal. The page on a Ghaziabad case from Singapore explains it.

A child's property: permission to sell

Guardianship of a child's property is a different question from custody. A natural guardian cannot sell, mortgage, gift or exchange the child's immovable property, or lease it beyond the limits the Act sets, without the previous permission of the court (Section 8(2) of the Hindu Minority and Guardianship Act), and the court permits it only for necessity or an evident advantage to the child (Section 8(4)). The application goes to the court within whose local limits the property is situated (Section 8(6)) and follows the procedure of the Guardians and Wards Act (Section 8(5)). A sale without permission is voidable at the instance of the child or anyone claiming under the child (Section 8(3)). This comes up in Ghaziabad when a family sells a flat or plot in which a child holds a share.

What to send the chamber

Send on WhatsApp to +91 98710 27648 the child's age, where the child has lived and studied over the past year, who has the child now, any pending divorce, maintenance, domestic violence or Section 85 BNS (old Section 498A IPC) case, any order already passed, and whether either parent plans to take the child out of Ghaziabad or out of India. The chamber advises on the route and files the petition or application before the Family Court.

Read next

• Where to file: 498A (now Section 85 BNS), divorce and child custody
• Divorce in Ghaziabad
• Maintenance under Section 144 BNSS (old Section 125 CrPC)
• A wife's rights in a divorce

Questions people ask