Custody of child
Querist :
Anonymous
(Querist) 04 October 2011
This query is : Resolved
my client gave custody of the child to his wife when they filed an application for mutual consent reserving his rights for visitation. however the wife has now filed an application for legal guardian ship. my client wants to make an application for the custody of the child due to changed circumstances since his ex wife wants to get married. can you tell me under which provision of law i can do so early reply awaited both are hindus
ajay sethi
(Expert) 04 October 2011
make an application for modification of order . state the fact that your ex wife is getting remarried . court will after taking into account various factors inclding wishes of child pass an order .
ajay sethi
(Expert) 04 October 2011
however there is a recent decision of supreme court wherein court has granted custody to mother even after remarriage
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) 05 October 2011
Child custody can always be modified as and when the circumstances change.
Hence you can very well apply for child custody because she is denying visitation in violation of the agreement and as well as the change of her marital status.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Sailesh Kumar Shah
(Expert) 05 October 2011
Make an application before the court for modification. In current situation, the court could allow.
prabhakar singh
(Expert) 05 October 2011
In these matters courts have only one THUMB RULE that benevolence of child is prime and above all or any consideration.
Chanchal Nag Chowdhury
(Expert) 05 October 2011
For custody,the welfare of the child is the test. Under Hindu law, the child has to be in the mother's custody till 6 years of age. U may get custody under the Guardians & Wards Act by proving Beneficial custody for the child.
