As families become more complex, there are times when grandparents wish to become more involved with their grandchildren's lives, particularly when one parent separates, divorces, or dies, or when a parent-child relationship with a child has been fractured. In these situations, the question arises: under Indian law, do grandparents have any legal rights to custody or access to their grandchildren?

Many of the countries we researched, in particular Western countries, have explicit laws dealing with grandparents' rights regarding visitation. The Indian legal system does not have any explicit law granting rights. However, this does not mean grandparents have no recourse. The history of decisions issued by Indian courts over the years provides a multitude of case law supporting the critical role grandparents play in caring for children, especially when the welfare and best interests of the children are at stake.

Legal Framework Governing Custody in India

In India, child custody laws are almost exclusively governed by personal laws, such as the Hindu Minority and Guardianship Act, 1956, for Hindus, and the Guardians and Wards Act, 1890, which is secular and applies to all communities.

In considering custody or guardianship, there are several important factors in child custody law in India:

• The welfare of the child shall be of paramount consideration;

• Children are usually granted custody by their parents unless they are unfit for custody.

• Courts may award custody or guardianship to others, including grandparents, in special circumstances.

Can Grandparents Get Legal Custody of Their Grandchild?

Grandparents can obtain custody of their grandchildren in the following circumstances:

• Both parents are dead.

• Parents are unfit or incapable.

• Parents abandon or neglect the child.

• Parents and grandparents mutually agree or consent.

Legal Route:

Grandparents can go to a district court or family court under the Guardians and Wards Act, 1890, to obtain legal guardianship.

Do Grandparents Have Visitation Rights?

Indian law does not define visitation rights for grandparents; nevertheless, visitation rights through judicial discretion have been granted in certain cases.

When can grandparents have visitation?

• After the separation/divorce of the parents

• When one parent denies access

• In case of emotional separation

Visitation can involve weekend visits, visits during festivals, or video calls, and in very rare cases, staying overnight.

Landmark Judgments on Grandparents’ Rights

• Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228

• Master Rishabh, 2005 SCC OnLine Del 1092

• Baby v. Vijaya, 2019 SCC OnLine Ker 1306

Factors Courts Consider

•  Age and health of grandparents

• Living conditions and financial stability

• Existing emotional bond

• Child’s wishes (if mature)

• Intentions of grandparents

• Stability of the child’s current environment

Challenges Grandparents May Face

• Opposition from parents

• Lengthy legal processes

• Emotional toll on the child

• No specific statutory protection

In conclusion, though Indian law does not explicitly provide custody or visitation rights to grandparents, there were numerous cases where courts have acknowledged that it is recognized that grandparents have a role in raising children. Grandparents act through the courts to be granted custody or visitation of grandchildren when it protects or serves the best interests of the child.

As families continue to evolve, the need to create codified rights for grandparents becomes increasingly essential to ensure children are allowed to have love, care, and support from all parts of the family system. For the time being, the courts will continue to be the guardians of fair play and will keep the many lost seconds, days, or years of loving contact alive when needed to consider the paramount relationship between a grandparent and grandchild.