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Family issue
4 years ago
Dear sir/Madam
I am so and so married on 2010 since my marriage my Still now continues fight among me and wife. When my male child is 3 month old she escaped somewhere for 3 years with her mother . After so many negotiations we join again in 2013, after 3 month again she escaped to same place. Within that 3 month she given dowry case on me and my family members in women police station and thereby demanded 3 lacks to pay my wife family for their debt. I given written statement that yes I will make arrange then after she accepted to live with me. After given 2 lack rupees she again escaped and torched me thorough mobile message that give divorce divorce. Then I applied divorce on request of my wife. But she not appeared and I am also not appeared before judge and case dismissed. After 3 years some rumors spread that your husband get married another lady but it is falls ,again in 2015 she joined with me lived 3 years one more girl child born on 2016.. Again as on now we are separated. Now 8 years’ male child and 3 yeas girl child under custodian of my wife. In want to take custodian of my two children if possible if I approach court or possible weekly one day on my custodian of my child where I have to approach either in district court or high court. I affected very hard by my wife.
Ayantika Mondal @ Prime Legal
Responded 4 years ago
A.Hi,
You can file a G&WC petition along with an interim application of visitation rights over the weekend.
You can file a G&WC petition along with an interim application of visitation rights over the weekend.
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A.Dear Sir,
You have to approach family court/district court and you will get custody of both children on the following principles of law enunciated by Supreme Court.
=========================================================
Please give me Rank 5 and Review my Resume and Follow me if my answer satisfies you
======================================================
Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
======================================================
CHILD CUSTODY LAW:-
The law governing Child Custody cases in India, broadly, falls under following Act:-
1. Guardian and Wards Act, 1890
2. Section 26 of HMA
3. Article 32/226 of Constitution of India in exceptional cases
PLACE WHERE CHILD CUSTODY CASE IS FILED
Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.
GENERAL CONSIDERATION BEFORE COURT WHILE DECIDING CHILD CUSTODY CASES BY THE COURT
All courts seized of child custody cases are duty bound to consider welfare of the minor child or children as the case may be. Parent seeking child custody has to prove that interest and welfare of the child shall be protected by him/her much better than the respondent/ opposite party.
Following are the broad parameters that court considers while deciding the issue of child custody:-
• Child’s proximity, closeness and love for the parent
• whether uprooting of the child from one parent to another will be adverse to the interest and welfare of the child
• Educational qualification of respective spouses and of their immediate respective family members.
• Wishes of the minor child, if he can form opinion on his own
• Financial status of parties(Not too predominant as generally believed upon)
• Performances and achievements in curricular and co-curricular activities
• Overall behavior and conduct of parties
PROCEDURE TO FILE CHILD CUSTODY CASE:-
A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody. Notably, in child custody cases non-custodial parent seeks the custody/guardianship of the minor child. Such petition usually takes longer time and thus application for Interim or Temporary custody as well as Visitation Rights are also filed by the Non-custodial parent.
VISITATION RIGHTS implies regular meeting of the minor child with the non-custodial parent. General duration of visitation rights varies from 1-4 meetings per month.
INTERIM CUSTODY implies generally overnight custody or long hours of custody for a defined period to the non-custodial parent with undertaking to restore the custody of the child upon completing the defined time by handing it to the Custodial parent.
Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.
As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. Such exceptional situation would include but not limited to one parent unlawfully take the child(ren) from the custody of other parent or unlawful retention of the custody of the children by the other parent or custody granted by a foreign court but the father or the mother as the case may be has taken the child out of the jurisdiction of that foreign court or the country. Such petition is filed in nature of Writ of Habeas corpus for Child Custody. It is filed for the expeditious determination of the issue. It is not a full fledged child custody petition having but has limited jurisdiction. However, Supreme Court or High Courts are vested with extra ordinary powers/jurisdiction to determine the issue. Timing of filing such petition is utter importance.
Key points:
• Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).
• Generally, the age of majority is eighteen years and in some cases it is twenty-one years.
• Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.
• It is extremely interesting to note that all judgments that attain finality bound parties with the final outcome. However, the decision or the judgments of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgment or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent then non-custodial parent can file child custody petition to reclaim the custody on the basis of change of circumstances concerning with the custodial parents adversely affecting the interest and welfare of the minor child(ren).
Our expert and top Child Custody lawyers drawing from vast experience understand the legal nuances, emotionally challenging situation, and complexities involved in cases create best solution and practical approach to achieve the objective of the contesting parents.
Our Child Custody lawyers have won most difficult and complicated issues in India or matters involving NRI including child abduction cases.
You have to approach family court/district court and you will get custody of both children on the following principles of law enunciated by Supreme Court.
=========================================================
Please give me Rank 5 and Review my Resume and Follow me if my answer satisfies you
======================================================
Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
======================================================
CHILD CUSTODY LAW:-
The law governing Child Custody cases in India, broadly, falls under following Act:-
1. Guardian and Wards Act, 1890
2. Section 26 of HMA
3. Article 32/226 of Constitution of India in exceptional cases
PLACE WHERE CHILD CUSTODY CASE IS FILED
Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.
GENERAL CONSIDERATION BEFORE COURT WHILE DECIDING CHILD CUSTODY CASES BY THE COURT
All courts seized of child custody cases are duty bound to consider welfare of the minor child or children as the case may be. Parent seeking child custody has to prove that interest and welfare of the child shall be protected by him/her much better than the respondent/ opposite party.
Following are the broad parameters that court considers while deciding the issue of child custody:-
• Child’s proximity, closeness and love for the parent
• whether uprooting of the child from one parent to another will be adverse to the interest and welfare of the child
• Educational qualification of respective spouses and of their immediate respective family members.
• Wishes of the minor child, if he can form opinion on his own
• Financial status of parties(Not too predominant as generally believed upon)
• Performances and achievements in curricular and co-curricular activities
• Overall behavior and conduct of parties
PROCEDURE TO FILE CHILD CUSTODY CASE:-
A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody. Notably, in child custody cases non-custodial parent seeks the custody/guardianship of the minor child. Such petition usually takes longer time and thus application for Interim or Temporary custody as well as Visitation Rights are also filed by the Non-custodial parent.
VISITATION RIGHTS implies regular meeting of the minor child with the non-custodial parent. General duration of visitation rights varies from 1-4 meetings per month.
INTERIM CUSTODY implies generally overnight custody or long hours of custody for a defined period to the non-custodial parent with undertaking to restore the custody of the child upon completing the defined time by handing it to the Custodial parent.
Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.
As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. Such exceptional situation would include but not limited to one parent unlawfully take the child(ren) from the custody of other parent or unlawful retention of the custody of the children by the other parent or custody granted by a foreign court but the father or the mother as the case may be has taken the child out of the jurisdiction of that foreign court or the country. Such petition is filed in nature of Writ of Habeas corpus for Child Custody. It is filed for the expeditious determination of the issue. It is not a full fledged child custody petition having but has limited jurisdiction. However, Supreme Court or High Courts are vested with extra ordinary powers/jurisdiction to determine the issue. Timing of filing such petition is utter importance.
Key points:
• Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).
• Generally, the age of majority is eighteen years and in some cases it is twenty-one years.
• Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.
• It is extremely interesting to note that all judgments that attain finality bound parties with the final outcome. However, the decision or the judgments of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgment or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent then non-custodial parent can file child custody petition to reclaim the custody on the basis of change of circumstances concerning with the custodial parents adversely affecting the interest and welfare of the minor child(ren).
Our expert and top Child Custody lawyers drawing from vast experience understand the legal nuances, emotionally challenging situation, and complexities involved in cases create best solution and practical approach to achieve the objective of the contesting parents.
Our Child Custody lawyers have won most difficult and complicated issues in India or matters involving NRI including child abduction cases.
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Suneel Moudgil
Responded 4 years ago
A.1. to take the custody of the kids or the visitation rights you will have to file a case of custody against your wife,
2. FYI,
The mother usually gets custody of the minor child, under the age of five but in case the mother is careless or ignorant towards the child it can be given to the father.
but after five it can be given to any parent.
various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc
The most important factor is the BEST INTEREST OF THE CHILD.
keeping in view the above facts, you can prepare your defense.
2. FYI,
The mother usually gets custody of the minor child, under the age of five but in case the mother is careless or ignorant towards the child it can be given to the father.
but after five it can be given to any parent.
various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc
The most important factor is the BEST INTEREST OF THE CHILD.
keeping in view the above facts, you can prepare your defense.
Helpful
Helpful
Share
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