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Writer's picturethelila500
May 8, 20234 min read

Can Grandfather File For The Child’s Custody After Divorce Of His Son With His Wife ?

Certain conditions are required to be followed, so as the custody of the child can be transferred to his grandparents. As the father and the mother of the child are natural guardians, the custody of the child will remain with them. Grandparents, however, will be granted child custody if certain circumstances and conditions are fulfilled, for further information on the subject, you may seek legal advice from experienced Divorce lawyers in Delhi. Before the custody of the child is granted, two things shall be considered by the court.These are-

  • As per the Nil Ratan Kundu case in 2008 (9) SCC 413, the intention when deciding the case of child custody shall be about the welfare of the child and not the right of their parents.

  • Paramount consideration in a custody case will be the welfare of the minor and not legal right of one particular party

  • In case the minor is old enough to have an understanding of the matters, the Court shall consider such preference as well, although final decision of the custody rests with the Court as to what shall be right for the welfare of the minor.

  • In the Nil Ratan Kundu case, the child was called by the Supreme Court in the chamber and the matter of custody was decided in the favour of the maternal grandparents in preference to its father. While determining the child custody, the court may not always prefer to give the custody of the child to parents alone, however in extraordinary circumstances it can also grant custody in the favour of the grandparents.

However, before determining the custodial rights, the courts would have to follow through the following acid test.

  • The Guardian and Wards Act of 1890 states that in addition to physical custody, the minor's rights to health, support, and education must also be protected.

  • Due regard is of course required to be given to the right of the father as a natural guardian of the child, however if the custody of the father cannot ensure the welfare of the children, he may be refused such guardianship of the child.

  • Just because a father loves his child and is not shown to be otherwise undesirable shall not necessarily lead to the conclusion that the child’s welfare would be better promoted by granting the custody of the child to him.

  • First and foremost consideration when deciding the custody of the child shall be the welfare of the child and not the right of the parent.

  • Custody of the child shall be decided on the grounds of financial soundness of the party merely - but paramount consideration shall be the welfare of the minor.

  • The moral and ethical welfare of the child will also be the point of consideration with the Court as well as the physical well being of the child.

  • Parents are the natural guardians of the child, however paramount consideration is welfare of the child and not a legal right of a particular party.

  • Keeping in mind welfare of the child as sole consideration, the court will also ask about the wishes of the child as to with which party he or she wishes to live with.

  • Custody cases related to children could not be decided on merely the documents, oral evidence or precedents without any reference to the 'human touch' - human touch is also an important point of consideration for the welfare of the minor as other materials could also be created either by the parties themselves or on the advice of their counsel so as to suit their convenience.

  • The court when deciding custody cases, is neither bound by the statutes nor by the strict laws of evidence or the procedure nor by any precedents decided - when deciding over the matter of proper guardianship of a minor, paramount consideration must be the welfare and well-being of the child.

  • If a minor is old enough to form his own intelligent preference or judgement as to with who he or she prefers to stay with, the Court would have to consider such preference as well, thus, the final decision will rest with the Court as to what is proper for the welfare of the minor.

  • One of the matters which shall be considered by the Court of law is the 'character' of the proposed guardian.

After undergoing the above acid test, child custody shall be given to the grandparents instead of the father. For further information on the subject, it is advised that you seek proper legal advice from an experienced Child Custody Lawyer In Mumbai or Family Lawyer In Mumbai or in your own city.


Lead India offers you a team of experienced advocates to deal with issues related to the matter of child custody, divorce or maintenance. Therefore, if you wish to talk to a lawyeror seek free legal advice, you may contact us


Call Us: +91–8800788535


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