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Child custody application- which section

Hi,

I wanted to take your opinion on how should I file my case for my child custody and visitation rights

Here are a few facts.

Child is Six & Half years old Daughter and has been living with her mother for last One month. My wife is mental Disorder patient, her treatment was continue before she left matrimonial house. I have filed RCR as per my lawyer suggestion. During these 1 month I have made several attempts to make my wife agree to send daughter to continue school, tuition and drawing classes but she did not. She told me, she will admit daughter to her paternal area school. She has also been doing everything possible to dissallow me and my family meet my daughter.

I am giving my petition for custody based on my better educational background, better Mental growth, access to better facilities and better location which will ensure beeter welfare of the childres.

So shall I apply under 26 of HMA or section 12 of GWA? after one month of File RCR petition though 1st hearing date of RCR january 2014.

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2 Replies

Adv. Chandrasekhar (Advocate) 02 December 2013

If in RCR, notice has been served and the other party is appearing, then at the first instance move an application under Section 26 of HMA. It is atemporary relief and it survives till RCR petition exists on the board. So, you have to file a case under GWA. You have to chalk out a proper plan for seeking relief from the court as each and every move from your side must be keeping in view of the paramount interest of the child. If your wife is refusing to join the child in the good academic institution, where you can borne the expenditure, my opinion is that if you file an application in GWA case for directing the O.P. to the good school coupled with visitation rights, it will protect the interests of the child and also pave the way for you to get smooth permanent custody.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 02 December 2013

Dear Querist

you can file an application before court in which your RCR case has been pending u/s 26 of HMA for custody of child or interim application for visitation rights. the court may pass an order as the court think fit & proper after hearing both the parties.

you have also right to file a separate case u/s 12 r/w section 25 of GWA for child custody with an interim application for visitation rights.

26. Custody of children. 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.

25. Title of guardian to custody of ward.-

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the 1[ Code of Criminal Procedure, 1882 (10 of 1882 ).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

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