How is Custody of a Child Decided in Cases of Domestic Violence?

Deeply rooted cultural emphasis on preserving families is widely prevalent in India, especially when it comes to marriage. During cases of divorce and separation, courts usually promote reconciliation or shared parenting if possible. But in cases of domestic violence and abuse, the decision of custody of the child becomes legally and emotionally difficult.

In custody battles involving domestic violence, the law is forced to ask difficult questions: Can a parent who has inflicted harm on their partner still be trusted to raise a child? Should blood ties override safety concerns? And most importantly, what truly serves the child’s best interests?

Legal Principle: Best Interests of the Child

The “best interests of the child” doctrine— It is a principle in which the child's emotional, physical, and psychological welfare is kept above parental entitlements. Under Section 17 of the Guardians and Wards Act, 1890, when awarding custody of a child, courts are directed to consider all circumstances, including abuse, neglect, and the moral fitness of each parent. A need to keep in mind the child’s mental health, as even witnessing domestic violence can deeply impact it, has been recognised by Indian courts over the years.

What the Law Says: Statutory Framework

Custody decisions are shaped by several statutes when domestic violence is involved:

●Protection of Women from Domestic Violence Act, 2005 (PWDVA): Section 21 authorises magistrates to grant temporary custody of children to the aggrieved party (usually the survivor) and may limit or deny visitation rights of the abusive parent.

●Guardians and Wards Act, 1890: This law acts as the overarching legal foundation for guardianship, custody, and the best interest of the child.

● Hindu Minority and Guardianship Act, 1956 (for Hindus): Traditionally, the father was favoured as the natural guardian of a child, but current laws keep the child's welfare first, particularly where domestic abuse is involved.

● Juvenile Justice (Care and Protection) Act, 2015: Where both parents are unfit, a child may be treated as in need of care and protection in extreme situations.

Can an Abusive Parent Still Get Custody or Visitation?

Yes, they can, but it is complicated and conditional.

Supervised visitation can be permitted by courts to ensure a child maintains a relationship with the parent while also keeping in mind that it doesn’t pose any kind of psychological or physical harm to the child.

Generally,

● A non-abusive parent is often awarded sole custody.

● In rare cases, joint custody is given when the abuse was not directed towards the child and does not risk their welfare.

Evidence Courts Consider in These Cases

For the protection of the child’s welfare and the establishment of abuse, the court may examine:

● Domestic Incident Reports (DIRs) under PWDVA

● protection orders and FIRs

● Medical or psychiatric reports

● Statements of teachers, neighbors, or social workers

● The child’s statement (if mature enough, typically age 9+)

Counsellors or child psychologists may be assessed by family courts to determine what kind of custody arrangement would be least harmful.

Is the Law Gender-Neutral?

Indian law—especially PWDVA—is gender specific and only recognises women as “aggrieved persons,” instead of recognising the fact that domestic violence can happen to anyone. But this also reflects the dark reality that women and children are the most frequent victims of domestic violence in India. According to the National Family Health Survey-5 (2019–21), nearly 30% of ever-married women aged 18–49 years reported that they have experienced spousal violence. Additionally, children in such households become silent witnesses, which takes a toll on the emotional and mental well-being of the child.

Challenges in Practice

Despite legal provisions, some of the challenges remain, such as:

● Underreporting: one of the major challenges faced by both men and women due to social stigma or fear.

● Delayed trials: Long trials often leave children in limbo.

● Biases: Sometimes only one gender is favoured due to stereotypes in society, such as that only women can be victims of domestic violence.

● Enforcement gaps: in rural areas or where the survivor lacks financial/legal support.

The way forward:

● Family courts can be made gender-sensitive with trained counsellors, and timelines for resolution can be quicker.

● In cases involving violence or abuse, there should be clearer custody guidelines.

● Better enforcement of protection orders.

● There should be legal reforms to make domestic violence protection more inclusive.

In conclusion, in cases of domestic violence, custody is not about choosing the better parent but a parent who can provide a safer and more stable environment for the child. Though laws in India are evolving at a fast pace, work still needs to be done in so many areas, such as systemic delays, evidentiary burdens, or outdated perceptions of family. Custody battles that are born from abuses, only love is not enough—they need protection as well.