UNDER CIVIL LAW   :___she can file a suit for child custody from Delhi-----A---------------------------CHILD CUSTODY :All matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.

Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.

Generally speaking, Guardian and Wards Court have power to grant:

• Permanent Custody
• Interim Custody
• Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.

Important factors, amongst other, which are considered by the Court in awarding custody are:

a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

  BUt she want to like filing of a Criminal case u/sec.97 Cr.p.C. then she has to file a case in NOIDA

The Code of Criminal Procedure, 1973 (CrPc)

97. Search for persons wrongfully confined.

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

Thanks a lot Minansu Ji for giving detailed update on my query, 

I still need to know what are provisions under which her case may be admitted in Delhi and no jurisdiction issues come, is her present ongoing DV Act case help her in acceptance of custody case in Delhi., is there any SC/HC judgements

which would be helpful to be quoted in petition regarding admission of case.

Thanks in advance,

Nishant

Normally where the child ordinarily resides  is the jurisdiction for filing custody case.  Experts may give detailed inputs in this regard.

You can move interim application in DV case on the basis of this following provision:

21. Custody orders.—

Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.

after getting the relief, you can go for permanent custody case.

@ chandu

I wish to intimate to you  on this subject of your mention for filing u/s 21 of the act as you only sympathesie to women queriest and immediately conclude file domestic violence act and so and so section  .Now no where has the author of this post stated that domestic violence has taken place between the father and the child and as a matter of fact first Domestic violence would have to be proved  .The author of this post has neither specified that he  has asked in her main petition seeking relief u/s 21 of the act through the DV act ????  and yet you advise and  say file for custody under section 21 of the act

Under the guise of a protection order u/s 21 of the act and if facts applied  ( which I presume that the child is with the father for the past 3 yrs than  custody retention itself will be major Bar for her to remove conscious switching custody now under S. 21 DV Act even if Special Act nature is interpreted. Otherwise so S. 21 DV The Act is enabling Section of The Act, 2005 to switch immediate custody by metro wife under the garb of Protection Order provided it is proved that domestic violence has taken place between the father and the child  ..Please note that  the child would be called and asked as to her preference with whom she / he wants to reside and what if child says that he / she wants to reside with father J how would section 21 of the act work in favour of the wife .

All child custody cases are temporary and under change of circumstances can be challenged 

I partially disagree to Lord.

1. Quite often Lord prescribes only one brand of cough syrup for all family law related remedies here. Arey ld. brother family law does not stop at just two sections; S. 498a IPC and or DV Complaint under S. 12 of The Act 2005 there are more to advise then having tunnel vision.

2. How come the biological father who has FORCED custody of child can be guided to himself use S. 21 DV Act that also in other jurisdiction (Delhi) where child is not living is first eye opener for a Delhi HC practitioner before we read rest of his copy paste of the Act.

3. Has anyone asked this queriest, if child living in Noida from day one i.e. past 3 years are just after wife filed DV complaint case in Delhi the child started living / studying in Noida?  Queriest is using the word FORCED in his query !

4. If not living in Delhi from last 3 years then S. 21 DV cannot be filed by husband himself but can be filed by wife showing wrongful removal of child for a fact of matter queriest is using the word FORCED in his query !.

5. However, she should be advised to use GWA Act in Noida if child has completed 180 days stay.

6. If child has not completed 180 continuous stay then she can still use GWA in Delhi as well as DV Act S. 21. The sectionunder DV act will install back child taken FORCEFULY yet GWA Act application will not change the status - quo and as per facts may grant full custody to wife.

First of all Thanks a lot to all experts who shown interest in my query and given their valueable inputs, I may

try to clarify some points raised hereunder :-

@Stanley : The author of this post has neither specified that he has asked in her main petition seeking relief u/s 21

A:  She has requested for relief (custody and interim visitation rights) under section 21 of her DV Main Petition, which was filed in December 2010.   She has also moved an interim application regarding custody and other interim reliefs US 23 in October 2011.

@tajobsindia : Has anyone asked this queriest, if child living in Noida from day one i.e. past 3 years are just after wife filed DV complaint case in Delhi the child started living / studying in Noida? Queriest is using the word FORCED in his query !

A:  Child was born in Noida only and since then he has been living in matrimonial home of parties, "Forced" in this context means, that father did not allow wife to enter the matrimonial home 3 years back and also did not allow her to meet their only child. She lived in noida for 2-3 months and tried her best to join back in the home and meet the child, but same was denied to her by abusing, threats and all sorts of mental harrasements. She was to move to delhi, as she was working there and was not keeping good health so for medical treatment in Delhi hospitals.

Cannot be concluded from your answers that, she cannot file GWA in Delhi at this stage, as she is waiting for justice for last three years for all causes.

1. Ask her to file GWA in Noida.
2. She will get on first hearing (after w/s) visitation order which she can further plead - handing over / taking back in NCR.
3. She should also change her advocate and except @ lord she can pick any other one via reference.

case for custody needs to be filed at the place where the child ordinarily resides.