(1) Notwithstanding
anything contained in Section 114, if matrimonial relationship
between a husband and wife is extinguished in accordance with
law, a minor born from them shall remain in the custody of the
mother or the father as provided herein below:
63
(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 the 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.
64
(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 heath 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.