Published On: April 11th 2026
Authored By: Vaidehi Sharma
Symbiosis Law School, Noida
Introduction
Indian family law has traditionally been organised around specific legal categories like biological parenthood, adoption, and guardianship. Laws on child custody generally assume that caregiving naturally follows from recognised parental status. However, current social realities in India are far more complex. More children are raised by grandparents, step-parents, extended family members, live-in partners, foster caregivers, or unrelated individuals who take on long-term caregiving roles. These caregivers often fulfil all parental functions but remain legally unrecognised. From 2025 to early 2026, there has been a subtle yet notable judicial shift, with Indian courts increasingly focusing on actual caregiving experiences rather than strict legal definitions of parenthood. This blog discusses how courts during this period have begun to acknowledge de facto caregivers by basing custody and guardianship decisions on child welfare principles, even where these caregivers fall outside traditional legal categories.
Rather than explicitly establishing a new legal status, courts have expanded the scope of interpretation within existing statutory and constitutional frameworks to acknowledge non-biological caregivers. This trend remains underexplored in both academic and popular legal discussions, even though it carries significant implications for family law, child rights, and social justice.
I. Statutory Framework Governing Child Custody and Care
India’s primary law on guardianship is the Guardians and Wards Act, 1890. Section 7[1] empowers courts to appoint a guardian where it is for the welfare of the minor that such an order be made. Section 17 provides that in appointing or declaring a guardian, courts must be guided by what appears, consistently with the law applicable to the minor, to be for the welfare of the minor. Additionally, Section 17(2) permits courts to consider factors such as the age, sex, and religion of the minor, the character and capacity of the proposed guardian, and the child’s preferences, if the child is old enough to form an intelligent preference. Significantly, the Act does not limit guardianship to biological relatives, allowing courts considerable flexibility in their decisions.
The Juvenile Justice (Care and Protection of Children) Act, 2015[2] establishes a welfare-oriented framework for children who require care and protection. Section 36 authorises Child Welfare Committees (CWCs) to conduct inquiries and decide on suitable care arrangements. Section 52 empowers the Board or Committee, after due verification of credentials, to recognise any person as fit to temporarily receive a child for care, protection, and treatment, after considering the child’s best interests. The Act intentionally does not restrict care to biological parents, acknowledging that child welfare may sometimes be better served through other caregiving arrangements. Together, these laws create a legal framework that prioritises care, stability, and emotional well-being over formal parentage.
II. Judicial Recognition of De Facto Caregivers: Emerging Case Law
A notable development in 2025 was the Bombay High Court’s decision in Vincy Cajetan Noronha v. Steffi Genovevo Fernandes.[3] The court dealt with a custody conflict between biological grandparents and a non-relative caregiver who had raised the child for a substantial period. Citing Section 17 of the Guardians and Wards Act, the court emphasised that the child’s welfare is the paramount consideration and cannot be determined solely on the basis of blood ties. The court highlighted the importance of emotional bonds, ongoing care, and a stable environment, ultimately appointing the non-relative as guardian. The decision explicitly stated that “mere biological proximity cannot outweigh the psychological and emotional security of the child.” This ruling demonstrated the judiciary’s readiness to acknowledge de facto caregivers where there is evidence of consistent caregiving.
In a 2025 ruling, the Gujarat High Court[4] upheld the guardianship of children residing with their grandparents, despite the biological father’s custody claim. The court emphasised the children’s stated wishes and the stability of their current environment. It reaffirmed that custody decisions focus on the child’s best interests, not on parental rights alone. Although the caregivers were relatives, the court’s reasoning reflected a care-focused perspective that consciously diminishes the primacy of biological parentage.
The Delhi High Court reaffirmed this welfare-centric doctrine in multiple custody disputes in 2025.[5] In one such case, the court explicitly held that parental rights, though important, are subordinate to the child’s welfare. The court further emphasised that legal parenthood does not confer an absolute right over a child, particularly where evidence indicates that another caregiver provides a more stable and nurturing environment. This reasoning implicitly supports the recognition of de facto caregivers by limiting the supremacy of biological parenthood.
A contrasting yet equally instructive perspective emerged in the Calcutta High Court’s 2025 ruling,[6] which directed a Child Welfare Committee to investigate the placement of twins with a non-relative caregiver. The court acknowledged the emotional bonds between the children and the caregiver. Nevertheless, it emphasised that placements with non-statutory caregivers require strict scrutiny to prevent exploitation or circumvention of formal adoption laws. The court reaffirmed that institutional care should be a last resort while underscoring the necessity of procedural safeguards under the Juvenile Justice Act. This decision demonstrates judicial caution, clarifying that recognition of de facto caregivers is not unconditional.
The Bombay High Court’s Aurangabad Bench[7] also reinforced the welfare doctrine in 2025, ruling that personal law considerations cannot override a child’s best interests. In a custody matter involving personal law, the court awarded custody based on welfare, holding that statutory or religious norms must yield when they conflict with the child’s well-being. This approach is particularly beneficial to de facto caregivers as it weakens the rigidity of personal law barriers.
At the Supreme Court level, a 2025 decision upholding interim custody[8] reaffirmed that welfare assessments should be flexible and evidence-based. The court noted that interim custody orders are not permanent determinations of parental rights but rather protective measures intended to ensure the child’s immediate safety and well-being. This reinforces the judiciary’s willingness to consider non-traditional caregiving arrangements when circumstances require.
III. Constitutional Underpinnings of Welfare-Centric Adjudication
Although most custody decisions rest on statutory grounds, constitutional principles exert a subtle but meaningful influence on judicial reasoning. Article 21 of the Constitution of India,[9] which guarantees the right to life and personal liberty, has been interpreted by courts to encompass the right to live with dignity. Courts have increasingly treated child welfare as a fundamental dimension of this right. Even though Article 21 does not explicitly address children’s rights, judicial interpretation has enabled courts to protect children from emotional harm, instability, and neglect. The growing acknowledgement of de facto caregivers reflects this constitutional philosophy, placing substantive well-being above formal legal status.
IV. Critical Analysis: Shifting from Status to Care
The 2025-2026 jurisprudence reveals a steady yet consequential transition from decisions grounded solely in legal status to decisions grounded in care. Courts are moving beyond the question of who holds legal custody rights and are instead examining who genuinely fulfils the role of a parent. Factors such as emotional bonds, continuity of care, and psychological well-being now occupy a central place in this inquiry. This shift reflects a deeper understanding of child development and brings Indian legal standards closer to international principles of children’s rights.
This judicial evolution also exposes notable legislative gaps. Indian law does not yet provide a formal category for de facto caregivers, and judicial recognition remains case-specific, generating uncertainty and inconsistent outcomes. Moreover, informal caregiving arrangements carry a risk of being exploited to evade adoption laws or bypass statutory protections. Courts attempt to address this through Child Welfare Committee inquiries and procedural safeguards, but the absence of explicit legislative guidance continues to pose difficulties.
Conclusion
Indian family courts are increasingly recognising caregiving realities that extend beyond formal parentage. By interpreting the Guardians and Wards Act and the Juvenile Justice Act through a welfare-focused lens, courts are acknowledging de facto caregivers without formally altering the legal definition of parenthood. This judicial approach advances child welfare and social justice, but it also underscores the pressing need for legislative reform. A clear statutory framework that recognises and regulates de facto caregiving relationships would bring consistency, safeguard children’s interests, and align the law with contemporary social realities.
References
[1] Guardians and Wards Act 1890, s 7.
[2] Juvenile Justice (Care and Protection of Children) Act 2015, ss 36, 52.
[3] Vincy Cajetan Noronha v Steffi Genovevo Fernandes (Bombay High Court, 28 April 2025).
[4] X v State of Gujarat (Gujarat High Court, 2025).
[5] ABC v WXY (Delhi High Court, 2025).
[6] In re: Minor Twins (Calcutta High Court, 2025).
[7] Y v Z (Bombay High Court, Aurangabad Bench, 2025).
[8] R v State of India (Supreme Court of India, 2025).
[9] Constitution of India 1950, art 21.
