Process of custody of undivorced hindu parents

There is no hard and fast rule as to who will get the custody of child. Generally, the law prescribes that mother gets the custody of a child below the age of 5 years. But it is not a definite law. In granting of custody of child the primary factor considered by the court is the well being of child and protection of child’s interest.

Dear Sandeep! Thanks for the question! Your case comes under the personal law of the child along with the Guardians and Wards Act, 1890. Here the child’s welfare and well being  is the paramount consideration in providing custody of the child. Now if the child is below 5 years the case would incline towards the mother. If the child is above the age of 5, the father will be preffered by the court as he is the natural guardian of the child. The father has to be present in India and attend the proceedings.

Now the process of application that you will have to follow is -

1. Start with a legal notice. Though it is not a legal requirement but if the notice serves your purpose and you don't have to deal in a legal proceeding, what's better?

2. If the notice does'nt help, file a petition for child custody under Section 9 (Jurisdiction) and  12 (Production of Child and Interim orders)  of Guardians and Wards Act, 1890 through a reputed lawyer in the Child Custody field.

3. After that you will just have to establish that you are in a beter position to take care of the child than the other parent.

This is all you need to do and once the court is convinced, you get the custody of the child through court orders. Good Luck!

Resolve amicably with your spouse for joint custody, sole custody

Or one of the parents gets visitation rights…………..Or custody of the child..Or shared parenting is decided

The courts examine the matter from the perspective of welfare of child..and may even speak to child.

Go thru;

If you are Hindu;

Hindu Marriage Act;26

Special Marriage Act;38

Hindu Minority and Guardianship Act 1956 (HMGA)

If other personal law applies e.g; in case of Christians;

Indian Divorce Act, 1869;41

Or Guardians and Wards Act 1890 (GAWA)

In the meantime you may go thru;

Madras High Court

P.Senthil Kumar vs R.Sunitha on 30 November, 2010

https://indiankanoon.org/doc/502714/

You may discuss with elders of your family, well wishers, mediators, seasoned PIP known to you and  get proper legal opinion from a very able LOCAL senior counsel of unshakable repute and integrity specializing in such/Family/Civil matters and well versed with latest citations, LOCAL applicable rules/laws and having successful track record…. and worth his/her salt , before proceeding further and rushing to courts…….

Your counsel shall examine all docs, records, inputs and advise you properly on merits and chances of success………. And also hazards of retaliation from OP and counsels of OP.

One should not initiate litigation on impulse.

Your counsel and well wishers can help to conciliate, arbitrate and try to bring the parties on table to resolve the matter.

If your matter land up in court then remember court shall decide on merits and evidences..and IT takes time and money to be in courts.

You may speak to your own LOCAL counsels in person. Your counsel may opine that he/she can apply on your behalf.

Rest is upto you.

Thank you all for your quick reply.  Appreciated.

A Survey is being conducted for Reforms in functioning of Family Courts in India.

Separated Parents in Child Custody / Visitation disputes are requested to participate and fill the form in link below.

Our Children Deserve Better

https://docs.google.com/forms/d/e/1FAIpQLSfb-7gq8lVMUed9PQqkMV3gYCb5TC5WgH5wMKV0uaJB-Rc9yQ/viewform