Yes, a father who never married the mother has rights in India, but they run through the child's welfare rather than through his status as a parent. Unmarried father rights in India come from three statutes. Section 6(b) of the Hindu Minority and Guardianship Act 1956 makes the mother the natural guardian first, the Guardians and Wards Act 1890 lets the father ask the Family Court for custody or defined access on the welfare test, and Section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 makes him liable to maintain the child either way. The table gives the six answers first.
Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.
| What you want to know | The answer | Where it comes from |
|---|---|---|
| Who is the child's guardian? | The mother, then the father, for a Hindu child. For other faiths, whoever the court declares on the welfare test | HMGA Section 6(b), GWA Section 17, ABC v State 2015 |
| Can I get custody or visitation? | Yes, by petition in the Family Court on the welfare test, with interim access under Section 12 | GWA Sections 7, 12 and 17, Family Courts Act Section 7(1)(g) |
| Must I pay maintenance? | Yes. The section covers a "legitimate or illegitimate child", interim maintenance included | BNSS Section 144(1)(b) |
| Will my child inherit from me? | Not by intestacy. An illegitimate child is deemed related to the mother only. Make a will | HSA Section 3(1)(j) and Section 8 |
| Can my name go on the birth certificate? | Only if given at registration or added by correction with her cooperation or a court finding. She may register on her own affidavit | RBD Act Sections 8 and 15, ABC v State 2015 |
| Does our foreign order or agreement count? | As evidence, not as a decree. India is outside the Hague Abduction Convention | CPC Sections 13 and 14 |
This page is for a man in Bengaluru with a child by a woman he never married, now separated, where she limits or refuses contact. Our child custody practice in Bengaluru acts on both sides of these petitions.
Unmarried father rights in India: do I have any if we never married?
You have the right to apply, and the child has a right to your support and, where it serves the child, your company. Section 8 of the Guardians and Wards Act lets anyone claiming to be the guardian apply, and Section 7 lets the court make the order where that is for the minor's welfare. In ABC v State (NCT of Delhi), 6 July 2015, the Supreme Court said that of the mother's, the father's and the child's interests only the child's is conclusive, and a child is not a chattel to be shuttled between them.
The same judgment shows how a court will see you. Any responsible man, it said, keeps track of his offspring, and the views of an uninvolved father are not essential to protect a child born out of wedlock and raised by the mother alone. Your record of involvement is the case: payments, visits, messages about school and health, your name on a hospital form.
Who is the legal guardian of a child born outside marriage?
For a Hindu child, the mother, and after her, the father. Section 6(b) of the Hindu Minority and Guardianship Act reads: "in case of an illegitimate boy or an illegitimate unmarried girl, the mother, and after her, the father", the reverse of Section 6(a). The Act reaches every child, legitimate or illegitimate, of Hindu, Buddhist, Jain or Sikh parents.
"After" does not mean after her death. In Githa Hariharan v Reserve Bank of India, 17 February 1999, the Supreme Court read "after him" in Section 6(a) as "in the absence of" the father, temporary or total, including apathy or inability. The same word sits in clause (b), so a father steps in as natural guardian where the mother is absent, unable or indifferent. While she is present and caring for the child, she is the guardian.
For a Christian, Muslim or Parsi child the Guardians and Wards Act alone applies, and ABC v State is the authority: an unwed Christian mother was declared sole guardian under Section 7 without naming the father, because the Section 11 notice to "the parents" is for a third party's petition, not a parent's. The Court also recorded that Muslim law gives custody of such a child to the mother. Section 19(b) bars appointing a guardian of the person while the "father or mother is living" and fit, so while she is alive and fit the court will not displace her. What you realistically ask for is custody or access, a different order.
Key takeaway. Guardianship and custody are separate questions. The mother is guardian first under Section 6(b) HMGA, but custody and access are decided on the welfare test and the father can apply for both.
Three rules decide most of these cases.
Mother first, father after her
Section 6(b) HMGA makes the mother the natural guardian of a child born outside marriage, and the father only in her absence.
Welfare decides access
Sections 7, 12 and 17 GWA let the Family Court give the father custody or defined access where that serves the child.
Maintenance is unconditional
Section 144 BNSS names a "legitimate or illegitimate child", so the duty to pay does not depend on marriage, guardianship or contact.
Can I get custody or visitation if we were never married?
Yes, on the welfare test that applies to any parent. The petition is under Section 7 of the Guardians and Wards Act. Section 9 sends it to the district court where the child ordinarily resides, and Section 7(1)(g) of the Family Courts Act 1984 gives that jurisdiction to the Family Court, so in Bengaluru it goes to the Family Court.
Section 17 lists what the court weighs: the age, sex and religion of the child, the applicant's character and capacity, his nearness of kin, his existing or previous relations with the child, and the preference of a child old enough to form one. For a never-married father the last two carry the weight. Kinship is proved by acknowledgment or DNA. The factors that decide custody between any two parents are in our guide on child custody for fathers in India.
The interim order comes first. Section 12 lets the court direct production of the child and make "such order for the temporary custody and protection of the person" of the minor as it thinks proper, and Family Courts use it to fix access while the petition runs: a few hours at the counselling centre for a child who barely knows you, growing to a full day, then overnight stays. Our guides on visitation rights and enforcing a custody or visitation order go further. One warning. Section 25 lets the court order the return of a ward removed from the guardian's custody, by arrest if needed, so a father who keeps the child after a visit hands the mother that section and answers the welfare question against himself.
Can my name be put on the birth certificate, and do I need a DNA test?
Your name goes on the birth record only if it was given at registration or the entry is later corrected, and the mother can lawfully register the birth without naming you. Section 8 of the Registration of Births and Deaths Act 1969 puts the duty to report a birth on the head of the household or the hospital. In ABC v State the Supreme Court directed that an unwed mother's affidavit is all the authorities may ask for before issuing the certificate, unless a court directs otherwise. A blank father column is lawful, and for a child born after the 2023 amendment commenced that certificate is, under Section 17(3), the single proof of birth for school, passport and Aadhaar.
Section 15 lets the Registrar correct an entry "erroneous in form or substance" subject to State rules. A blank column is not an error, so adding your name against her objection needs a finding of paternity first.
On DNA the position is the reverse of the married one. Section 116 of the Bharatiya Sakshya Adhiniyam 2023, the successor to Section 112 of the Evidence Act, makes birth during a valid marriage conclusive proof that the husband is the father. No marriage, no presumption either way. Paternity is an ordinary fact, proved by her admission, your acknowledgment in documents, or a DNA test the Family Court can order inside the guardianship or maintenance case. If she denies paternity, ask for the test at the first hearing. The standards are in our guide on DNA and paternity tests.
Deadline warning. Section 13 of the Registration of Births and Deaths Act gives three windows: thirty days on a late fee, one year with the District Registrar's written permission, and a magistrate's order after that. Check the registration before you file anything.
Do I have to pay maintenance if I get no custody, and will my child inherit from me?
Maintenance yes, inheritance by intestacy no. Section 144(1)(b) BNSS, the successor to Section 125 CrPC, orders a person with sufficient means who neglects or refuses to maintain "his legitimate or illegitimate child, whether married or not, unable to maintain itself" to pay a monthly allowance. The claim is the child's and does not depend on your relationship with the mother or on whether she lets you see the child. Section 7(2)(a) of the Family Courts Act gives the Family Court this jurisdiction.
The front end is quick: interim maintenance under the second proviso to Section 144(1), a sixty-day target for deciding it under the third proviso, and an allowance that can run from the date of the application under Section 144(2). Section 144(3) is the teeth: a warrant to levy arrears and imprisonment of up to a month for each unpaid month, on an application within a year of the amount falling due. The only defence that works is a genuine denial of paternity.
Common mistake. Stopping the monthly payment because she stopped the weekend visits. Access and maintenance are independent orders, and the court hearing your access petition reads the arrears as the "uninvolved father" of ABC v State. Pay by bank transfer every month and fight access on its own.
Inheritance runs the other way. Section 3(1)(j) of the Hindu Succession Act 1956 defines "related" as related by legitimate kinship, and its proviso deems illegitimate children related to their mothers and to one another, not to the father. Your child is not among your heirs under Section 8 if you die intestate. The fix is a will, a nomination on every policy and account, or a gift deed.
We had an agreement or a court order abroad. Does it count in India?
As evidence, not as an order an Indian court must carry out. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive between the same parties unless it was not given by a competent court, not given on the merits, founded on an incorrect view of international law or a refusal to apply Indian law, opposed to natural justice, obtained by fraud, or founded on a breach of Indian law, and Section 14 presumes competent jurisdiction from a certified copy. India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, so there is no summary return of a child brought here, and the Family Court decides welfare afresh with the foreign order weighed as one fact. A parenting agreement signed abroad without a court is a private document that binds no Indian court.
Bring a certified copy with a notarised translation and the record showing she took part, because an order made without notice to her is the one Section 13 will not save. Where the child has been moved across a border, the remedies including habeas corpus are in our guide on custody for NRI parents.
We lived together for years. Are we treated as married?
Possibly, and it changes every answer above. In Tulsa v Durghatiya, 15 January 2008, the Supreme Court held that where partners lived together for a long spell as husband and wife there is a presumption in favour of wedlock under Section 114 of the Evidence Act, rebuttable, with a heavy burden on the person who denies the marriage. It needs holding out as husband and wife, not a shared flat: joint accounts, her use of your surname, family functions attended as a couple.
If it applies the child is legitimate, Section 6(a) HMGA makes you the natural guardian first, subject to the proviso that a child under five is ordinarily with the mother, and the child inherits from you as a Class I heir. It cuts both ways, because it can also make her your "wife" for maintenance under Section 144. Where the cohabitation was shorter, the Domestic Violence Act's "relationship in the nature of marriage" may still apply, and that test is in our guide on live-in relationship rights.
Step by step: what to file in Bengaluru, and what it costs
What I tell fathers in this position is that the statute is the easy part and the file is the hard part. Where these cases actually turn is the year before the petition: whether the payments went by bank transfer with a narration, whether the messages are civil and about the child, whether you asked for time in writing and how she answered, and whether the child knows your face. Second, decide what you are asking for. Sole custody of a three-year-old who has lived only with the mother invites a refusal and a wasted year. A defined access schedule that grows with the child is the order Family Courts grant.
- Collect the paternity and involvement record: hospital papers, any document naming you as father, bank statements, messages, school receipts.
- Check the birth registration: whether it exists, what the father column says, and which Section 13 window applies.
- Write to her once, proposing a specific access schedule and confirming you will keep paying. Her reply, or silence, is your first exhibit.
- File under Section 7 of the Guardians and Wards Act in the Family Court, Bengaluru, with an interim application under Section 12.
- If she denies paternity, apply for a DNA test in the same case. If she has filed under Section 144 BNSS, file your income affidavit and pay the interim order on time.
- Attend the settlement effort under Section 9 of the Family Courts Act with a written schedule ready, since an agreed order avoids the trial.
- If no settlement, lead evidence on the Section 17 factors and take the final order.
An interim access order in the Bengaluru Family Courts usually comes within weeks to a few months of filing, and a contested final order takes one to three years. Professional fees run from the tens of thousands of rupees into the low lakhs depending on how contested paternity and access are, and a DNA test is a separate cost of a few thousand rupees. Three facts decide the timetable.
Foreign orders are evidence
A foreign custody order is evidence within Section 13 CPC, India is outside the Hague Abduction Convention, and welfare is decided afresh.
Long cohabitation may mean marriage
Tulsa v Durghatiya presumes wedlock after a long spell of living as husband and wife, and then Section 6(a) HMGA and Class I inheritance apply.
Register the birth in time
Section 13 of the Registration of Births and Deaths Act: late fee within thirty days, District Registrar's permission within a year, magistrate's order after that.
Frequently Asked Questions
Can an unmarried father get full custody in India?
He can ask for it, and the court decides on the welfare of the child under Section 17 of the Guardians and Wards Act. Where the child has lived only with the mother, courts usually start with defined access and revisit custody as the child grows or if the mother's care fails.
Is the father the natural guardian of a child born outside marriage?
Not while the mother is present. Section 6(b) of the Hindu Minority and Guardianship Act names the mother first and the father "after her", which the Supreme Court's reading of the same word in Githa Hariharan treats as her absence, apathy or inability.
Do I have to pay child maintenance if she refuses to let me see the child?
Yes. Section 144 BNSS covers a legitimate or illegitimate child and does not make payment conditional on access. Non-payment can lead to a warrant and imprisonment of up to a month per unpaid month under Section 144(3).
Can the mother register the birth without my name?
Yes. In ABC v State (NCT of Delhi) the Supreme Court directed that an unwed mother's affidavit is enough for the authorities to issue a birth certificate, unless a court has directed otherwise.
Can a court order a DNA test if we were never married?
Yes. The presumption of legitimacy in Section 116 of the Bharatiya Sakshya Adhiniyam applies only to a birth during a valid marriage, so paternity is a fact to be proved, and the Family Court can order a test in the guardianship or maintenance case.
Will my child inherit my property if I die without a will?
Not under the Hindu Succession Act, whose Section 3(1)(j) deems an illegitimate child related to the mother and not the father. Make a will and update nominations. If a long cohabitation raises the presumption of marriage, the child inherits as a legitimate child.
Does a custody order from a foreign court bind an Indian court?
No. It is conclusive only within the exceptions in Section 13 of the Code of Civil Procedure, India is not a party to the Hague Abduction Convention, and the Family Court decides on welfare with the foreign order as one factor.
Which court in Bengaluru hears an unmarried father's petition?
The Family Court for the area where the child ordinarily resides, under Section 9 of the Guardians and Wards Act read with Section 7(1)(g) of the Family Courts Act. The same court hears the maintenance case under Section 7(2)(a).
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
