Children Custody
Dadi Uma Mahesh
(Querist) 09 February 2010
This query is : Resolved
Que.1)Can a Father(Petitioner) who filed for Divorce Suit against Wife, in the Same Suit can he Pray for Custody of Children aged 8yrs Son and 6 years Daughter, If so on what grounds, if no what is the process?
Note::Children did know their father as the Wife deserted the husband 6.5yrs back.
Raj Kumar Makkad
(Expert) 09 February 2010
1. He cannot file such petition in the same divorce petition rather he should file a separate petition under Hindu Maintenance & Guardianship Act.
Sachin Bhatia
(Expert) 09 February 2010
He can not Pray for Custody of Children in the same petition.
Guest
(Expert) 09 February 2010
i agreed with Mr. Makkad aand Mr. Sachin.
Devajyoti Barman
(Expert) 09 February 2010
He can indeed pray for custody of the child in the same suit but the said custody is interim in nature as prescribed u/s 26 of HMA and custodial order can also be modified from time to time even after passing of the decree.
Parveen Kr. Aggarwal
(Expert) 10 February 2010
Section 26 of the Hindu Marriage Act, 1955 confers jurisdiction on the Court trying a petition thereunder to make orders for custody of children. Section 26 reads as:
"In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made".
So a father can make prayer for custody of children and the court can pass orders thereon.
However, a father can always file a petition under the provisions of the Guardians and Wards Act, 1890 for custody of his minor children.
The fact of the children recoginizing their father will not be such a material fact in case the court finds that the welfare of the children is in living with the father.
