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Last Updated On 21-Jul-2025
Child Custody

I want to apply for divorce and child custody

I am a 37 year female. I have a 2 year old kid living with me in India. I want to apply for divorce and child custody . When the child is already with me in India can I still apply for child custody. Can child custody be applied in the divorce petition or is it a separate petition ? My lawyer advised that I cannot apply for child custody as child is already with me. Please advise

( Bangalore, Karnataka )

20-Jul-2025

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A.
Dear Madam,

Legal Position on Child Custody.

In India, physical custody (the child staying with you) is different from legal custody (court order confirming your right). Even if the child is currently living with you.

You can and should request the court to grant you legal custody.

This ensures that your custody is recognized by law, and prevents the husband from later claiming or forcibly taking the child.

SO BETTER APPLY FILE TWO DIFFERENCT CASES.
Posted On 21-Jul-2025
Kishan Dutt Kalaskar
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A.
Dear Client,

You absolutely can and should apply for child custody concurrently with your divorce petition, despite the child already being in your physical care.

Your lawyer's advice that you cannot apply for custody because the child is with you is generally incorrect, as applying for custody formally establishes your legal right to make crucial decisions regarding your child's upbringing (legal custody) and solidifies your physical custody, preventing future disputes or challenges from your husband.

Including the custody plea directly within your divorce petition is typically the most efficient approach, allowing the court to address all related matters divorce, child custody, maintenance, and visitation simultaneously, always prioritizing the "best interest of the child" as per law.
Posted On 21-Jul-2025
Gourab Das Advocate Gourab Das
Gourab Das
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