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Q. Responsibility of child custody in case of mutual divorce

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Anonymous

posted 1 year ago

Q.Responsibility of child custody in case of mutual divorce
Me and my wife both are wiling to take mutual divorce now after 1 year 2 months of marriage life and we have 3 months old baby girl. Now my wife does want to take child custody. Is she legally do so? If she doesn't want take custody of baby, is she bound to bear 50% of child maintenance expenses in future if child stays with me. Please note my wife is a working woman

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Rajender Prasad

Experience: 6 Year(s)

Responded 1 year ago

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A. ) maintenance of the child is on the parents ad the court watch the interest of the child who can better bring up the child betterand the custodyof the child is entrusted to that parent, here the court will watch the income of the parents and decide the proportion of the expenses of the maintenance .FILE A CASE IN FAMILY COURT. for details, pl. contact some advocatethrough vidhikarya.com

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Advocate B. Srikiran

Experience: 11 Year(s)

Responded 1 year ago

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A. ) Dear,

Husband and wife are both legally bound to maintain their children. If your wife does not want to take the custody of the baby and as she is a working woman, you need to claim maintenance expenses from your wife for the baby. However, the quantum of maintenance you can claim towards the baby will depend upon your income also. Therefore, arrive a consensus with your wife pertaining to the maintenance of the baby at the time of drafting the Memorandum of Understanding (MOU) and proceed with MCD.

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Anonymous

Replied 1 year ago

Thank you sir! Is there any specific mandatory time period like 3/5 years to have custody of baby with the mother. Should court accept the MOU and allow us to take divorce, whatever we decision we take consensusly

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Advocate B. Srikiran

Experience: 11 Year(s)

Replied 1 year ago

Sir,

Yes. The court has to accept the MOU entered between you and your wife and the court allow you to take divorce whatever decision you are taking mutually. Coming to your query regarding specific mandatory period for the baby's custody with the mother, it is 5 years as the court will not grant custody of the baby to the father if the child is below 5 years. As you are going for MCD, the custody of the baby has to be decided between both of you as the court will not interfere in that matter. You both have to take the decision of the custody of your baby mutually and mention in the MOU.

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Anonymous

Replied 1 year ago

Many many thanks Sir.. Your suggestion is very helpful.

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Kishan Dutt Kalaskar Retired Judge

Experience: 34 Year(s)

Responded 1 year ago

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A. ) Dear Sir,
Since child is too small so there are not chances of handing over child to you unless she is facing the allegation of adultery. The citation.
======================================================================================================
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.
http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html

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Anonymous

Replied 1 year ago

Thank you very much Sir! I have one more point. If mother takes child custody till baby become 5 years old and till then I bear 50% of baby's expenses and the same thing we draft in the MOU, should it legally be enforceable. Obviously I will not bear my wife expenses as she is a Govt. employee

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niranjan C

Experience: 8 Year(s)

Responded 1 year ago

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A. ) 1. It is always suggested for the mother to take child custody ( if the child less than 3 years of age ).

2. In case, if mother does not want the child custody then you can maintain the kid.

3. As the mother is working woman, she has to bear the expenses of maintaining the kid. Only court can decide the maintenance by the working woman. But, there are SC citations where 75% of child maintenance paid by the working woman.

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Anonymous

Replied 1 year ago

Thank you very much Sir! I have one more point. Is she able take with her all Jewellery including whatever we gifted her during marriage and post marriage. Obviously she must take out whatever she brought from her father's house. But is she legally able to take out our gift also?

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niranjan C

Experience: 8 Year(s)

Replied 1 year ago

Hi,

1. You need to get orders from court for her to return all the jewelry which you gifted during marriage and post marriage.

2. It is the burden from your side to prove in court that what ever you gifted to her in the form of jewelry,cash,property ... etc.,

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