Section 21 of the Domestic Violence Act: Custody Orders for Children

Reviewed by the AM Legal team, led by Advocate Anant Misra · Updated October 2026 · 3 min read

What Section 21 provides

Section 21 allows the Magistrate, at any stage of the hearing of an application for protection or any other relief, to grant temporary custody of a child or children to the aggrieved person or the person applying on her behalf. If necessary, the Magistrate also specifies how the respondent may visit the child. The proviso is important: if the Magistrate thinks a visit may be harmful to the interests of the child, the Magistrate must refuse to allow it.

The order is temporary, a protective step while the main case continues. Permanent custody and guardianship are decided under the Guardians and Wards Act, 1890 and personal law. See our pages on child custody after divorce in Delhi and the best interests standard.

How courts decide custody under the DV Act

The Magistrate asks one question above all: what is best for the child? Factors usually include:

• the child's age and needs, and who has been the primary caregiver;
• evidence of violence in front of the child or against the child;
• stability of housing, schooling and health care;
• the child's own wishes, if the child is old enough;
• the respondent's conduct and ability to provide a safe environment.

Mothers often get temporary custody of young children, but the court does not apply this as an absolute rule. Fathers who show a stable home and genuine involvement can also be given custody or generous visitation.

Visitation

Section 21 contemplates that the respondent may visit the child. Courts may fix:

• weekly or fortnightly visits in a neutral place;
• supervised visits through the family court or a child-friendly space;
• phone or video contact at set times;
• a ban or restriction on visits where there is risk of harm.

If you are the mother seeking custody, request clear conditions. If you are the father, show your plan for safe, regular contact and stick to the schedule.

Applying for a custody order

1. Include a prayer for custody under Section 21 in your Section 12 application.
2. Give details of the child, school, health, daily routine and who looks after the child.
3. Ask for interim custody under Section 23 if there is urgency.
4. Attach birth certificates, school records and proof of the child's residence.

Where the situation is mainly a custody battle without violence, a petition under the Guardians and Wards Act in the Family Court may be better. Our child custody lawyers in Delhi can advise.

Frequently asked questions

Can the Magistrate give custody of children under the DV Act?

Yes. Section 21 allows temporary custody to the aggrieved woman at any stage, with visitation arrangements for the respondent.

Is the custody order under Section 21 permanent?

No. It is temporary. Permanent custody and guardianship are decided by the family court under the Guardians and Wards Act and personal law.

Can a father get visitation rights?

Yes, unless the Magistrate finds the visit would be harmful to the child.

What if the child is above five years?

There is no rule that a child must be with the mother after five. The court decides on welfare. See custody of a child above 5 years.

Does the court consider the child's wishes?

Yes, if the child is old enough to express an intelligent preference, though the court is not bound by it.

Related guides

• Section 19: residence orders
• Section 18: protection orders
• Custody of child above 5 years
• Child custody after divorce in Delhi

Where we can help

• Child custody lawyers in Delhi
• Domestic violence lawyer in Delhi
• Matrimonial lawyer in Delhi
• Book an appointment

This page is general legal information for readers in India, not legal advice, and no lawyer-client relationship is created by reading it. Laws and court practice change, so confirm the current position with a qualified advocate before acting. AM Legal, 2589 Hudson Lane, GTB Nagar, Delhi 110009.