Sateesh Ch 10 September 2015

Need help ! wanted to file for visitation and custodianright

Hi,

I am issued with divorce through ex-parte divorce decree in November 2014.

The divorce petition was filed by my ex-wife and I stood as ex-parte. My ex-wife(Government Official) and ex-in-laws threatened of foisting 498A against me and my parents. I had no choice except staying calm in that matter. Finally we got ex-parte divorce decree

Later, made up myself and prepared for divorce. I had 2 children (boy – 7years and girl – 1 year 7 months) out of that broken married life and I am missing my children.

Couple of months back, I got married to another lady. I have told all my first marriage history to second wife and have detailed her about my responsibility towards my children (born to first wife) and based on her willingness to accept me with my children, we got married.

Later marriage, I made couple of attempts to meet children at school and play areas and have failed as my ex-wife and their family gang surrounded children with goons and police with their influence. They are threatening of foisting false kidnap cases etc.I didnot have chance to see them from last 2 years.

I wanted to file for Visitation and Custodian rights of my children legally in order to take care of their upbringing and welfare.With blessings of God. I am doing decent job and making decent earning/saving for my children. I feel that my interaction with children allow me to bring them up with right morals and successful life and careers.

Can you please advice on how to proceed further in this matter legally?

Thanks in Advance!

Appreciate your response and guidence

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5 Replies

SAINATH DEVALLA (LEGAL CONSULTANT) 10 September 2015

So the custody of the children was given to UR wife at the time of divorce.Did U not contest custody of chidren and if not visitation rights? Are U paying maintenance for the children?But legally as he boy is 7yrs old U can claim custody of the son,but U cannot claim custody of the girl child,but can claim visitation rights.

rajarajeswari (advocate) 10 September 2015

Hindu Minority and Guardianship Act provides that the natural guardian of a Hindu minor, in respect of the minor’s person as well as property, in case of a boy or unmarried girl is their father, and after him, the mother. The custody of a minor who has not completed the age of five years shall ordinarily be with the mother. But in exceptional cases when you can prove that the mother is not able to maintain the children or she does not have the capacity to maintain the child in a healthy environment and if the child is in her custody, her future will be at stake, then you can be provided child custody.... In general, in case of your son, you shall seek custody and in respect of daughter you can ask visitation rights.

Rajarajeswari.P.

Advocate, Madras High Court,

150/309, II Floor, Linghi Chetty Street, Chennai - 1

Sateesh Ch 10 September 2015

Originally posted by : SAINATH DEVALLA
	So the custody of the children was given to UR wife at the time of divorce.Did U not contest custody of chidren and if not visitation rights? Are U paying maintenance for the children?But legally as he boy is 7yrs old U can claim custody of the son,but U cannot claim custody of the girl child,but can claim visitation rights.

Thanks for the response Sainath.

I didnot have chance to contest for Custodian/Visitation rights as the divorce decree itself was carried out in an exparte manner.

I am not paying any maintainence and there is no such mentioning of the maintainence in divorce decree too.

Sateesh Ch 10 September 2015

Originally posted by : rajarajeswari
	Hindu Minority and Guardianship Act provides that the natural guardian of a Hindu minor, in respect of the minor’s person as well as property, in case of a boy or unmarried girl is their father, and after him, the mother. The custody of a minor who has not completed the age of five years shall ordinarily be with the mother. But in exceptional cases when you can prove that the mother is not able to maintain the children or she does not have the capacity to maintain the child in a healthy environment and if the child is in her custody, her future will be at stake, then you can be provided child custody.... In general, in case of your son, you shall seek custody and in respect of daughter you can ask visitation rights. Rajarajeswari.P. Advocate, Madras High Court, 150/309, II Floor, Linghi Chetty Street, Chennai - 1

Thanks Rajeswari. this helps me to some extent

T. Kalaiselvan, Advocate (Advocate) 19 September 2015

You were handed over an exparte divorce decree only and there was no decision by a court of law nor you both had a consensus about the custody of children nor their upbringing either orally or in written. The children are in her possession till this date though she is not having any legal custodial rights on them.

Being biological father to the children you are the natural guardian to your minor children and you are entitled for the custody rights legally. Therefore you file a child custody case and also file an IA seeking visitation rights as an interim relief.Consult a local advocate and proceed as per his further advice.