Lalit (Manager) 31 March 2011

Child Custody Jurisdiction & Sectionas Applicable

Dear Sirs - Need legal advice on a case with following facts:-

2 years back a divorce is obtained by a couple under Sec 13 1 A.
As per the terms of divorce, Initially the wife has agreed to give up custody of 2 children, then 2.5 and 1.5 yrs old.
This divorce is however, 3 months after being granted, challenged in the court by the wife on the grounds of being obtained fraudulently and by the force of threat.
This case is also then transferred from City A( husbands hometown) to City B(wife's hometown) on permission of Honb'le SC and the matter is currently ongoing in FC of City B.
Thier Marriage had first taken place in City B and then also in City A 3 weeks later on the wishes of the elders from the husbands side
Bothe children were born in City A and are currently residing.

The lady now seeks to file a plea for custody of children. Seeking answers to following questions:-

Given tha fact that initial terms say lady has given up custody, can she file for custody at this stage?
If Yes, which location would this be?
Finally, which sections of law are best invoked?

Will be thankful to all for thier help on this situation.

Thanks

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1 Replies

Tajobsindia (Senior Partner ) 31 March 2011

@ Author

1. Yes, she can file for custody on simple grounds that the earlier matter i.e. Divorce Decree is under challenge and is opened up.

2. It is obvious that as per terms of earlier decree and later as per intervention of SC the case is opened up for service in City B (wife's) city so she will file in City B for custody of children.

3. Now for 3 if you are from husbands side and invoking correct sections of Law then wither he should proceed under S. 26 HMA or in current situation the best provisions are under S. 25 and S. 17 GWA. If you are from wife's side then my guess is you shall go by S. 26 HMA,

Notes:

From your brief it looks the custody of children are with Husband since last 2 years and children are living in city A i.e. husband's city. In such situation either of the Court will not disturb interim custody that is one. Two if wife files from City B i.e from her city then on Jurisdiction point her suit is not maintainable whih is preliminary object ground one). Third since from last 2 years children are well adjusted with father living in city A chances of custody given to her is lesser based on this brief.

Rest as per capacity of parent(s) and wishes of children.