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Q. Muslim law

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posted 3 months ago

Hello..took khula according to Muslim law 5months ex husband seperated my 11month old son from me took to his house and blackmailed me that if I want my son I should break all d relations with my parents n never visit or talk to them and I should listen to his parents however they abuse me.i waited for 20days then applied for khula according to Muslim law.they threatened me that if I took my child they Wil harm my parents.i rejected the custody of my child under fear.3days later he came back and said that he wants to settle the matter and will remarry me and will take me away from his parents who used to torment me.then all of a sudden stopped calling or texting.when my father approached him he clearly refused for a settlement saying dat his parents doesn't want me to come back and he Wil not go against them.then after a few days he again approached my father saying dat he should talk to his father over dis and apologise as it was in the interest of the child who was 1yr old father agreed and talked to him but he was reluctant to talk to my father instead he abused and defamed me saying that I had an affair with another man and had eloped with that man leaving behind my child.since then he comes every few days and says he Wil marry me later says no.this is going on and off since he is going to gulf and leaving the child behind with his parents and does not want to give him to me.he is telling me that I should marry him secretly and if his parents wish they Wil give my child back.but I dnt want this as he is not trustworthy.plz tell me a way how can I get my child back.he is now 1.5yrs old.his mother is reluctant to give me my child or even to let me meet my child.she is saying that he belongs to them is there property and I have no right over him
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A. Ma'am as per your query

1. You had relinquished your right to maintain your son. [In this regards the next guardian, the father of the child becomes the caretaker of the son] Irrespective of the fact that you had left such guardianship or the onus to maintain your son by force or any other external factors which have to be proven in the court of law having competent jurisdiction which will be tough to prove as you will have no documentary evidences to prove the same. All that we shall have are circumstantial evidences which are not enough.

2. The general thumb rule which the court follows is that till the child has attained the age of 5 years the guardianship of the child goes to the mother irrespective of whether she is rich or poor or can maintain the child or not. The law states that the mother is the natural guardian of the child until he attains the age of 5 years.

Hence in your case even if you file a custody case it will be in your favour as the age of your child is below 5 years.

Also, if we look at the statutory provisions. The father of the child is leaving for gulf and is not taking the child along with him but is keeping the child at the mercy of the grandparents who are old and infirm and must be suffering from various ailments. In such a situation you can file a custody case for the benefit of your child on the following grounds.

1. Neglect
2. Incapacity
3. Non Performance of the duties of a father
In my opinion you should file a Child Custody case as soon as possible and take the custody of your minor child in your hands proving well that it is in the interest of the child that the custody goes to you [the mother].
Thanks and Regards
Shreyash Mohta

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Shreyash Mohta

Experience: 1 Year(s)

Responded 3 months ago

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A. Dear Madam,
You have to file for Child Custody.
Sooner it is done it is better for you.
Get it done through a good Lawyer.
Shanti Ranjan Behera

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Shanti Ranjan Behera

Experience: 22 Year(s)

Responded 3 months ago

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A. Dear Madam,
You can file DV case seeking following reliefs.

A) to take cognizance for the offence punishable u/s 498A IPC and punish Respondent No.1 to 3 as per law and extend police protection to the deponent,

B) Pass orders u/s 19, based upon S.17, granting separate residence for herself and her three children at a monthly rent of Rs. 20,000/- and advance of Rs. 5,00,000/-.

C) Pass orders u/s 18, in totality against Respondent No.1 to 3,

D) Pass orders u/s 20(i) granting Rs.25,000/- per month as maintenance for applicant and maintenance at the rate of Rs. 5,000/- each per month to her three children.

E) Pass orders granting Rs. 5,00,000/- for setting up house hold requirements, in granted residence, to make it livable, as the applicant cannot return to the house of Respondent No.1 as he is residing in the house of respondent No. 3, which is legally prohibited,

F) Pass orders granting litigation expenses of Rs.1,00,000/- as the applicant made to wander from pillar to post for getting legal aid to attend the Hon’ble Court, whereas, the Respondent No.1 falsely filed Divorce Petition.

G) The applicant also filed interim application supported by affidavit u/s 23(1) and (2) of D.V.Act,

H) That any other order/s, this Hon’ble Court deems fit, to meet the ends of justice, be passed.

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Replied 3 months ago

Thnq Sir.I have only one son.when my ex husband took him away from me he was 11months old n nw 1.5yrs my ex husband remains out of d house at nights most of d time for dat matter everyday n spends time with the child only for few of d time the child Wil b wid his grandparents.n I am a doctor but have left my practice since 2016..can he b proved unfit for child's custody based on this??

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Replied 3 months ago

Even the atmosphere in his house is not fit for a child..there r always fights every other day use of abusive language and alcoholism from the side of my ex husband..can this b sufficient to proove him unfit for child's custody?


A. U should approach to the court and file complaint against them immediately

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Rameshwar Dadhe

Experience: 2 Year(s)

Responded 3 months ago

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