Section 115: To be under custody of mother or father

1) Notwithstanding anything contained in Section 114, if a matrimonial relationship between a husband and wife is extinguished in accordance with law, a minor born to them shall remain in the custody of the mother or the father as provided herein below:

(a) In the case of a minor who has not attained five years of age, under the custody of the mother, if she so desires, irrespective of whether or not she has concluded another marriage,

(b) In the case of a minor above five years of age, except where the mother has concluded another marriage, under the custody of the mother, if she so desires,

(c) In any circumstance other than that referred to in clause (a) or (b), under the custody of the father.

2) Notwithstanding anything contained in sub-section (1), where the husband and wife have entered a separate agreement on the custody of a minor at the time of divorce or judicial separation, the agreement shall apply to the custody of the minor.

3) Notwithstanding anything contained in sub-section (1), while deciding as to which of the father and the mother has the custody of a minor above ten years of age, the opinion of the concerned minor may also be obtained.

4) Notwithstanding anything contained elsewhere in this Section, if the mother or father, under whose custody a minor is living, dies, the surviving father or mother shall take the minor under his or her custody without any delay.

Provided that if the mother has already concluded another marriage, she is not obliged to take a minor above five years of age under her custody.

5) Notwithstanding anything contained elsewhere in this Section, if the husband and wife, who get separated in accordance with law, have a minor, the maintenance, education and health care of such a minor shall be according to the agreement concluded, if any, between the husband and wife in that respect, and in the absence of such an agreement, it shall be as follows:

(a) In the case of a minor below five years of age, the minor shall be under the mother’s custody,

(b) In the case of a minor who is of five years of age or above five but below ten years of age, the minor shall be under the father’s custody,

(c) In case of a minor having attained ten years of age, the minor shall be under the mother’s or the father’s custody, with whom the minor desires to live.