Imran Desai (Partner) 03 August 2012

Custody of my children

Respected Sir/Mam

I am Muslim, father of two lovely children (One Boy 7 years old & One Girl 4 years old)

I want get separate from my wife because of differences. As she has more preference towards her carrier than family. We have been separated (not legally) from last 11 months the kids are staying with me. She has never tried to contact them also.

Now i want to get separated legally will it be enough if we get separated as Muslim laws i.e. as sharayat as I need to remove her name as spouse from my passport. If yes can she go the court later...

Please also enlighten on custody of Kids as they are staying with me for around 11 months is there any age limit on kids as i have come to konw that child above 5 years are entitled to father.

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1 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 03 August 2012

Dear Querist,

1. As per Islamic Law - mother has a preferential right to custody (Islamically called 'Hizanat') of children upto the ages of 7 in case of boy, and puberty in case of girl. Note this right is preferential and not absolute children under such ages can be with father, and older children can remain with mother, it depends on the overall welfare of the child, which is the paramount consideration. If welfare lies with you, then the court would order custody to remain with you. The Boy is old enough to make a preference, and in that case she would at best get mere visitation rights. She stands a better chance with the girl.

2. If you divorce her, and she is unable to maintain herself then you may end up paying her a monthly maintenance till she gets remarried.