Divorce - My girl Child aged 11 years is staying with her mother
4 months ago
My girl Child aged 11 years is staying with her mother. I stay separate. Can the mother initiate Posco case against me? She wants a divorce and wants to get remarried. I do not want a divorce for the sake of my child's future. I have asked for child's custody.
A.Dear Client,
Your wife can initiate a case of POSCO against you and India has a high number of cases of fake POSCO Proceedings, but the possibility of it depends on the mentality of your wife and her approach. However, even if she initiates the case establishing the crime under POSCO when you are innocent will be a very difficult task.
You have mentioned that your girl child is 11 years old, in deciding matters related to custody of a child above the age of 9. The child's interest is of great significance, the court considers the choice of a child above the age of 9 years regarding his/her custody.
Thank You.
Your wife can initiate a case of POSCO against you and India has a high number of cases of fake POSCO Proceedings, but the possibility of it depends on the mentality of your wife and her approach. However, even if she initiates the case establishing the crime under POSCO when you are innocent will be a very difficult task.
You have mentioned that your girl child is 11 years old, in deciding matters related to custody of a child above the age of 9. The child's interest is of great significance, the court considers the choice of a child above the age of 9 years regarding his/her custody.
Thank You.
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A.Dear Client,
As far initiating POCSO is considered, it depends on the mentality of the mother but establishing such a case against the father is not that easy and you shall be able to defend yourself easily with the help of a good lawyer.
As far initiating POCSO is considered, it depends on the mentality of the mother but establishing such a case against the father is not that easy and you shall be able to defend yourself easily with the help of a good lawyer.
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A.Dear client,
As per the Guardians and Wards Act 1890, once a child achieves the age of 9 years in India, his/her preference for custody is considered by the Court on appeal seeking custody of the child by either parent. It is possible for a father to get sole custody of his child. In order to do so, first and foremost he must establish the unfitness of the mother before the Court seeking the custody of the child. The court must also feel that the father meets the "best interest standard" of the child. According to Section 39 of the Guardians and Wards Act, 1890, if a mother/father fails to provide proper guidance, care, or support, and is determined to be unfit, a drug abuser, or who emotionally and mentally abuses the child, will eventually lose custody of their child. In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality. To ensure the child's welfare, the court must guarantee that the child is in contact with both parents regularly for his proper welfare and growth. The child has to stay with the parent assigned by the court till he or she reaches the perceptible age, irrespective of the claims of the parents. In many cases, the courts in India encourage parents to explore mediation before initiating formal custody proceedings. Mediation is a process where a neutral third party helps parents reach a mutually agreeable custody arrangement. If mediation doesn't result in an agreement, you may need to file a custody petition in the appropriate family court. Courts in India prioritize the best interests of the child when determining custody. The Protection of Children from Sexual Offences (POCSO) Act, 2012 deals with sexual offences against persons below 18 years of age, who are deemed as children. The growing erroneous cases against the biological father to prevent him from getting child custody are a full-proof example of POCSO Act misuse in child custody battles. The Kerala High Court in the case of Suhara v Muhammad Jalee made an observation while granting the custody of a five-year-old girl to the father and highlighted that the family court has the duty to take due care and examine the evidence adequately immediately before initiating the proceedings under the POCSO Act. As in the case of Alamohan Das v State of West Bengal, the court clearly speculated in the context of the scope of committal proceedings that a judge can only shift and weigh the materials on record by seeing whether there is sufficient evidence for the commitment of the crime. Further in Dr Jaseer Aboobacker vs State of Kerala, the mother wanted to restrict the visitation rights of the father and had filed a POCSO case against him. The court said that the child has been made a “weapon of choice” by one parent against the other. In both cases, the allegations were dismissed by the Court. So, it is advisable to consult a legal expert on the subject for guidance and steps.
As per the Guardians and Wards Act 1890, once a child achieves the age of 9 years in India, his/her preference for custody is considered by the Court on appeal seeking custody of the child by either parent. It is possible for a father to get sole custody of his child. In order to do so, first and foremost he must establish the unfitness of the mother before the Court seeking the custody of the child. The court must also feel that the father meets the "best interest standard" of the child. According to Section 39 of the Guardians and Wards Act, 1890, if a mother/father fails to provide proper guidance, care, or support, and is determined to be unfit, a drug abuser, or who emotionally and mentally abuses the child, will eventually lose custody of their child. In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality. To ensure the child's welfare, the court must guarantee that the child is in contact with both parents regularly for his proper welfare and growth. The child has to stay with the parent assigned by the court till he or she reaches the perceptible age, irrespective of the claims of the parents. In many cases, the courts in India encourage parents to explore mediation before initiating formal custody proceedings. Mediation is a process where a neutral third party helps parents reach a mutually agreeable custody arrangement. If mediation doesn't result in an agreement, you may need to file a custody petition in the appropriate family court. Courts in India prioritize the best interests of the child when determining custody. The Protection of Children from Sexual Offences (POCSO) Act, 2012 deals with sexual offences against persons below 18 years of age, who are deemed as children. The growing erroneous cases against the biological father to prevent him from getting child custody are a full-proof example of POCSO Act misuse in child custody battles. The Kerala High Court in the case of Suhara v Muhammad Jalee made an observation while granting the custody of a five-year-old girl to the father and highlighted that the family court has the duty to take due care and examine the evidence adequately immediately before initiating the proceedings under the POCSO Act. As in the case of Alamohan Das v State of West Bengal, the court clearly speculated in the context of the scope of committal proceedings that a judge can only shift and weigh the materials on record by seeing whether there is sufficient evidence for the commitment of the crime. Further in Dr Jaseer Aboobacker vs State of Kerala, the mother wanted to restrict the visitation rights of the father and had filed a POCSO case against him. The court said that the child has been made a “weapon of choice” by one parent against the other. In both cases, the allegations were dismissed by the Court. So, it is advisable to consult a legal expert on the subject for guidance and steps.
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