Permanent custody of child

Querist : Anonymous (Querist) 04 November 2011 This query is : Resolved
my client and his wife filed for mutual consent divorce and it was granted by the court. they have a small daughter aged two years. they agreed that the wife will have custody of the child and the father will have visitation rights. now the wife has filed an op under indian guardinship act to declare her as the legal guardian. now my client wants to ask for permanent custody of the child. can he ask for the same in the op filed by his wife or should he file a separate op for permanent custody of the child under indian guardian ship act since the court is refusing to entertain an application under section 26 of the hindu marriage act stating that both the parties must ask for modification of the order. I require a clarification on this.

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Shonee Kapoor (Expert) 04 November 2011
A fresh petition under Guardian and Wards act would be needed.

The parties should have resolved the guardianship issue resolved and put it in the agreement for Mutual Consented Divorce.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

M.Sheik Mohammed Ali (Expert) 04 November 2011
yes, i do agreed experts query reply

Raj Kumar Makkad (Expert) 04 November 2011
If both parties come for modification of judgment already passed then it shall definitely save time, energy and bitterness and if your ex. wife is not ready then you have no remedy but to file a separate petition.

prabhakar singh (Expert) 05 November 2011
When a divorce decree has already been passed ,the court can not pass the order under section 26,any modification therein is possible only on mutually moved application.

Fresh application would now lie if mutually modification is not possible.

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