• Legal rights over child

My husband and I have agreed to file for a divorce. We have a 12 year old daughter. 
I cheated on my husband for a few years and he discovered this last year. I am guessing he has circumstantial evidence against me as he had access to my emails and photo galleries. However he does not want to make this public and prefers divorce on mutual consent. 
Now, he got the first petition documented. It says that we will have joint custody however he will keep the primary physical custody rights. I understand that The role of a primary petitioner is to provide for financial, emotional and social needs of the child and the secondary petitioner only has visitation rights as accepted ( daily, monthly, unrestricted etc). 
I am deeply concerned about him demanding relentlessly the primary physical custody access as I have been the primary parent to my child through these years - taking care of all her needs and being there for her through health and sickness, maintenance and emotional support. She has recently gained puberty and at this point needs a mother. The father on the other hand has been a support for her however his contributions towards her activities are much lower than me. I have been the sole mum, maid, driver, nanny, cook for my child with minimal support from the husband all these years. 
We live in the UK and my child and myself are his dependent though I am trying to get an independent visa. I am employed and earning well enough (not as brilliantly as the husband but good enough) to support my child in every way possible. The reason given to me by him for sole custody is that any visa issues/extensions for her can be easier managed by him. And that he is willing to support my visa dependency until I get a permanent visa. 
My questions are as follows. 
1. What does primary physical custody mean? Is there any additional rights that parent would have over the secondary? If so, what are they?
2. We both prefer to have joint parenting for our child. That said, in the event of him getting primary physical custody, what can I do to ensure he does not misuse or override any decisions regarding our child?
Asked 1 year ago in Family Law
Religion: Hindu

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14 Answers

It's interim custody or joint custody. Yes parents have right of visitation rights

If he misues you can go to court and modify the order for the same

Prashant Nayak
Advocate, Mumbai
22633 Answers
49 Consultations

4.4 on 5.0

I think you need to relax a bit.


Here are the things you need to understand:

  1. In a Mutual Divorce, one of you will be Petitioner 1 and the other will be Petitioner 2, or in your terms the primary and secondary.
  2. After divorce you both will live separately and lead your own individual life.
  3. For your daughter you are still the mother and your husband is the father.

Now coming to the Petition and explaining to you in layman's terms:

Basically, what your husband intends is that the child stays (lives) with him and you can visit your daughter whenever you want.

Since you say your daughter has attained puberty, I presume she should be around 14 Years or so. At this age, you or your husband do not have the say on with whom she lives. Whatever document or agreement you both sign, she will be asked as to with whom she wants to stay/live. So, I don't see any point in you both fighting over this clause.

In such cases of infidelity, usually the custody of child is given to the father. Also, in your case it is the girl child, and there are all the chances that you may get back to your paramour. Then, your paramour should not harm the child (I guess you understand what I mean). But as mentioned, your daughter is above 8 Years, she has the final say.

I would suggest that you both speak to your daughter and draft the petition accordingly.


In my opinion (feel free to disregard), I think your husband is reasonable enough. He is even supporting you till you get your independent visa. Also, the reason that he is giving with respect to your daughter is logical. Let say, you get your independent visa, then since it is fresh, and with Brexit, there are all possibilities of your daughter's visa not being extended.

And as a suggestion (feel free to ignore), If you are no longer in the extra-marital affair, I would suggest you to speak to your husband and ask him for another chance. You both can perhaps go to a family counselor to resolve this issue, as it requires some external help for rehabilitation. If this doesn't work or if it has crossed these, you both can opt for Judicial Separation wherein you both will still be husband and wife for all paper work, but you can stay separate leading your independent life. And your daughter can be free to stay with whomever she likes. You can try this for an year or two, and if it doesn't work out, then go for a divorce. Ideally, as there are all the chances that your daughter may be affected with all this divorce and stuff, you are making a smooth transition for her.


All The Best. Please do rate my answer. Also visit my website Advocate.Sandeep-Prakash.com

Sandeep Prakash
Advocate, Bangalore
308 Answers
2 Consultations

5.0 on 5.0

There is no joint custody concept in India.  One parent takes physical custody with other having visitation right only. 

Kallol Majumdar
Advocate, Kolkata
2787 Answers
4 Consultations

5.0 on 5.0

1) Whatever you have explained above regarding physical custody is the same that father will have primary rights, means he will take care of her for all things including financial, educational, social etc. Here you have to prove to court that he can't be able to take care like motherhood. As mother is the natural caretaker of her own child so you should be given as primary custody and father should have only visitation rights no matter it may be twice a week.

Ganesh Kadam
Advocate, Pune
11751 Answers
114 Consultations

4.9 on 5.0

 as per Guardian and ward act any child above the age of 5 years NGOs in the custody of father for the development education and financial support hear the primary custody means that he will remain in the custody of the father and you will have the restrictive rights to meet the child after an interval.

 if your husband is not getting divorce on the basis of adultery there will be no problem in joint parenting and you can and take care of the child as agreed by both of you and approved by the court

Vimlesh Prasad Mishra
Advocate, Lucknow
6793 Answers
23 Consultations

4.9 on 5.0

The primary residential parent generally has final decision-making authority in day-to-day care and control of each child.


2)Primary custody refers to the parent with whom a child lives after both parents separate or divorce.


3) consent terms should provide both ha e joint custody of child 


4) child can stay with you for 4 days in week and with father 3 days in a week 

Ajay Sethi
Advocate, Mumbai
79737 Answers
4810 Consultations

5.0 on 5.0

1. Primary physical custody means the person having this right will keep the child with him only while the other person shall have rights to meet or spend time with the child on the agreed terms.

2. So if you want custody of the child then you will have to become her primary physical custodian while your husband needs to become secondary custodian will have mere vitiation rights only.

3. So before signing the agreement you must get the petition checked by your advocate and make your demands or preferences clear to your advocate so necessary changes can be incorporated in the petition.

Devajyoti Barman
Advocate, Kolkata
21795 Answers
318 Consultations

5.0 on 5.0

1. Primary physical custody means you will be the legal guardian in the eyes of law and there is difference between primary and secondary, being a primary custodian you have right to do all the things which are necessary for the upbringing of the child but the secondary can only provide support and have a right to visit the child.


2. in the joint parenting custody both of you will have right to watch the acts of each other and in case of any negligence, the objections can be raised, in case, he is trying to misuse or override the decision than the court will see the welfare of the child only and nothing else.


Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5791 Answers
272 Consultations

4.9 on 5.0

Dear Madam,

The following information may kindly be read:

Custody rights of Indian moms (and dads) after divorce

Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Divorce and custody battles can become a quagmire and the innocent child gets caught up in the legal and psychological warfare between both parents.

Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.

After the dissolution of a marriage, custody of a child can be given as:

Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.

Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.

Third Party Custody: Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.


Under secular law as well as Hindu law

  • The mother usually gets custody of the minor child, under the age of five.
  • Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.
  • The choice of a child above the age of nine is considered.
  • A mother who is proven to neglect or ill-treat the child is not given custody.
  • Helpful information

    The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.

    The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

    The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

    The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.

    The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.

    The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.

    Other interesting rulings

    Supreme Court bench headed by Justice Vikramjit Sen had ruled that an unwed mother does not have to take consent from the biological father of the child, or reveal his identity for sole guardianship of the child.

    The Delhi High Court has ruled that using the mother’s name is sufficient for a child to apply for a passport when the child is being brought up by a single mother without any involvement from the father.

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
27 Consultations

4.8 on 5.0

For visa and such other kinds of things both parents consent is mandatory, so no special authority on child like primary and secondary custody.

Neither such concept has any mention in Indian custody law - it may either be joint/part/full/visitation right etc. Physical custody should rest with mother only, and husband with part custody of visitation rights.

Wish of child being 12 years age also consider by court and adultery has less effect in order to grant custody to mother.

Yogendra Singh Rajawat
Advocate, Jaipur
21407 Answers
31 Consultations

4.4 on 5.0

Dear madam,

  • Legal Custody: Parents who have legal custody are able to make legal decisions on matters impacting the child.
  • Physical Custody: Children live with parents who have physical custody.
  • Sole Custody: One parent has both physical and legal custody of the child. The other parent may have visitation rights, but does not have any custodial rights, and cannot make decisions affecting the child.
  • Joint Legal Custody: In a situation of joint legal custody, both parents have a say in decisions that impact the child. In the event of a major dispute between parents who share joint legal custody, the courts can settle the dispute.
  • Joint Physical Custody: When parents share joint physical custody, the children split time between living with both parents.

Kishan Dutt Kalaskar
Advocate, Bangalore
5650 Answers
235 Consultations

4.8 on 5.0

primary physical custody means that one parent is more responsible for caring for any child or children in the family. The other parent may or may not have visitation rights. Primary physical custody is used in a shared physical custody situation rather than with a sole physical custody order. 

Mohammed Mujeeb
Advocate, Hyderabad
18986 Answers
14 Consultations

4.5 on 5.0

Primary physical child custody means that the child will stay with the parent having primary custody and he or she will have right to take any decision regarding child life. 

You can just add clauses for visitation rights of your daughter and also legal rights over daughter life decisions. If your husband misuses his power as primary parent then you can file execution petition for order of court. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

1.  You are trying to negotiate the child custody rights as per UK laws, hence it would be better to clarify the actual meaning of the technical terms used by that country in this regard. There is no such provision in Indian law in the manner you have stated.

2. You can enter into an agreement to the conditions which are to be reduced to writing and get it endorsed by an order of the court along with the divorce decree of judgment, to make sure there is no breach of the same in the future.


T Kalaiselvan
Advocate, Vellore
69776 Answers
953 Consultations

5.0 on 5.0

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