Custody of daughter
aman rajput
(Querist) 07 July 2012
This query is : Resolved
I with my wife is going to file Mutual Divorce petition in the court. We have also got a small daughter of 5 years .Currently the daughter is staying with her mother. Sir my in laws have promised me that my wife is not going to remarry again ever in her life on the basis of that I agree to file Mutual Divorce Petition and give 11 Lacs in the form of FD under my daughters name for the bringing up for my daughter as my daughter will then be look after properly by her mother....I have a doubt that if my wife break the promise of remarrying so will the custody of my daughter automatically come to me under Hindu Law???? or should i get this condition mentioned in the Mutual Divorce Petition before filing the same in court???????????? as I am very much concerned about my daughter .....and my wife is not at all ready to stay with me due to interference of my in laws in my matrimonial life.
Devajyoti Barman
(Expert) 07 July 2012
1.First note that any agreement is restraint of marriage is void on the ground of violation of public policy. So you started wrongly at the very first place.
2. Second marriage of parent is not ipso facto a ground for change in custody. So unless you have some more cogent ground you are not likely to get her custody on this ground alone.
3. Yes you can always mention conditions regarding visitation of child but no conditions could be mentioned the violation of which would automatically entitle you to get the custody unless the same is in harm with the welfare of the child.
Adv.R.P.Chugh
(Expert) 07 July 2012
Dear Mr.Rajput,
As per the prevailing law, no matter what term or stipulation you include in your mutual consent petition as regards her not marrying there is nothing that you can do to prevent her from marrying, and even if there is a stipulation that in case of remarriage custody would revert to you automatically - the courts wont give effect to this, unless there are other circumstances that have rendered it no longer conducive for the child to live with the mother. Just marrying again won't destroy her right to custody. Though in light of other circumstances you can try your luck in court.
ajay sethi
(Expert) 07 July 2012
A divorced woman is entitled to the custody of a minor child even after remarriage, notwithstanding the fact that the father is the natural guardian under the Hindu law, the Supreme Court has held.
A Bench of Justices A.R. Lakshmanan and Altamas Kabir said: "The remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. It also has to be seen whether in view of his other commitments, the father is in a position to give personal attention to the child's overall development."
The Bench said: "According to the Hindu law, the natural guardian of a minor child [above the age of six] is the father. In the next place, the guardian of a child is the mother. The very principle of guardianship is that there is a presumption that parents will be able to exercise good care in the welfare of the children if they do not happen to be unsuitable as guardians."
Rejecting the concept of the father being the natural guardian, the Bench said: "it has been the law for a very long time both in England and in this country and that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount."
Writing the judgment, Mr. Justice Lakshmanan said, "the father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after divorce is no ground for depriving her the parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child."
"No imbalance of mind"
The Bench said, "if the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage, involving a mother per se, will operate adversely to a claim of a mother for the custody of her minor child."
In the instant case, Lekha got separated from P. Anil Kumar within two and a half months of marriage. Thereafter, she gave birth to a boy. She obtained divorce on the ground of harassment and the trial court granted custody of the child.
The husband preferred an appeal in the Kerala High Court, and during its pendency, Ms. Lekha got married again.
The High Court granted custody of the child to the father. The present appeal by Ms. Lekha was against this order.
The Bench, after ascertaining the wishes of the 12-year-old boy, directed that Ms. Lekha be entitled to his custody and that her former husband has only visiting rights.
Shonee Kapoor
(Expert) 10 July 2012
1. The child custody can always change on the change of circumstances.
2. She can remarry anytime and you can not stpp her from doing so.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 13 July 2012
custody, though possible, but very very difficult. Usually mother will hv custody.
get MCD soon , before she chg her mind.
