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Q. Regarding child custody

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Hi Priyamvada Sharmaayaa

posted 8 months ago

Q.Regarding child custody
Sir there is divorce case between me nd my husband. Because of my mother in law nd sister in law he filed a false allegations against me. I hv leave my child so that he feel some responsibility. But he is not ready for compromise. Now they put a photo of my son on Facebook and on that he is not looking happy. I think my mother in law is making my child depressed by saying bullshit against me. He is of 3 years. Can I put charges on her to make my child depressed and also demand for child custody again?

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Shanti Ranjan Behera

Experience: 22 Year(s)

Responded 7 months ago

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A. ) Dear Madam,
The answer is yes.
But father will have visiting right as per the direction of the Hon'ble court .
Of course in the presence of mother.
Shanti Ranjan Behera
Advocate

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Kishan Dutt Kalaskar Retired Judge

Experience: 33 Year(s)

Responded 7 months ago

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A. ) Dear Sir,
Yes, the mother is entitled for child custody as welfare of the child is the main concerned for the Courts to decide such issues.
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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

CHILD RIGHTS COMMISSION ACT 2006

http://www.kscpcr.com/eng_ver/actsandrules.php

The Karnataka State Commission for Protection of Child Rights (KSCPCR)
4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE
NRUPATHUNGA ROAD, BANGALORE-

Such Commissions are situated in Every State
.==============
Bombay High Court
Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016
Bench: A.S. Oka

IN THE HIGH COURT OF JUDICATURE AT BOMBAY


ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO. 84 OF 2013


Forum for Fairness in Education An NGO,

Vs


Union of India and Others. .. Respondents
-
5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:

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Shreyash Mohta

Experience: 1 Year(s)

Responded 8 months ago

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A. ) Ma'am as per your query, you can fight for the child custody case but the facebook thing will not work. Your advocate will need to prove that you can take better care of your son. Also, till the age of 5 years, the mother of the child is held to be the natural guardian of the child so the custody case will in all likelihood fall in your favour.

Thanks and Regards
Shreyash Mohta

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