Child Custody

Dear Client,
The first step in seeking custody or visitation of a child is to file a petition in the family court where the child resides. The petition can be filed by either parent, grandparents, or any other person who has an interest in the child's welfare. Even if one parent has custody, the other parent will have visitation rights. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. 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 a child by either parent. Fathers can get sole custody of their children. 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" and the well-being of the 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. Only in case, if the court feels that the mother is unfit to take care of the child, the custody will go to the father. You have filed an application under Section 9 of HMA for the restitution of Conjugal Rights which is now pending before the Court. If the husband wins the Sec 9 (RCR) case then the wife is not entitled to Maintenance u/s.125 of CrPC. The decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by a competent civil court that the wife had no sufficient reason for refusing to live with her husband. To address a false complaint or false criminal proceedings filed against you, you can seek its quashing through a petition before the High Court under Section 482 of the Code of Criminal Procedure, 1973(now Sec.528 of BNSS).. The Sec.482 Cr. PC empowers the High Court to dismiss false complaints/criminal proceedings initiated pursuant to that complaint before the trial Court against a person. It is essential to prove to the court that the complaint or criminal suit was lodged with malicious intent to cause harm or inconvenience and is devoid of truth. The burden of proof rests on the petitioner. It is always recommended to consult with an expert divorce lawyer to navigate the issue of child custody or visitation rights in the right way.