Validity of evidence document of divorce op

 there is nothing in the affidavit filed by your wife which   can legally suport your  claim for custody of the  child ,. instesd she can claim mainteance  from you , the contens of the affidavit are legal admissions  and  cannot be wiped off., the   custody of the child  is   allowed   mainly on the considerations of the childs welfare 

What is ur lawyer's opinion? If u can make all the legal submissions then u must know the answer . 

It is difficult to give opinion merely on the above contents, still looking at the above contents,i feel ,  u may not get the custody of the child. Sorry for my hard opinion to digest . Make compromise and try to live better life with ur child which is ur real wealth. U may get many thing if u can save ur marriage life in this nasty world. 

Sandeep Naik

Advocate High Court _Mumbai

Mob : 99670 56980

A child of tender age (less than 5 years) is normally given physical custody with the mother, unless there are some abnormal circumstances like mother's illness (mental or physical) or adultery or some other strong reasons.   Inability of the mother to financially provide for the child is never a reason to take the child away, instead the father is required to provide separate maintenance for the child.    Circumstances may vary and hence custody situation may vary in future so keep hopes of taking the custody of the child at later years.  The courts consider the welfare of the child as paramount in deciding the custody, and when the circumstances change the custody decisions might change as well.

For now fight the custody case which shows that you are a good father and would be caring for the child.  It is unlikely that you get the custody now, but it will help you in future when circumstances change.  Please keep in mind that once the child is used certain environment like the place of residence, and the schooling it is hard to convince the courts to disturb the child.   It would be helpful if you live in the same town.

Having said all the above, no court can take away a biological parents fundamental right to visitation of the child and some interim custody arrangments.   Try as many such visitations as possible and build a strong bond with the child.   Give lots of gifts to the child (once the child recognizes the gifts) and show the child how much you love him/her.

 What are the parameters that court look for to decide the welfare of the child?

In my case:

1) Wife deserted along with the child when the child was 8 months old (present age 3 yr 6 months) and have denied the child access to his father, despite father's persistent efforts to bring them back. She alleged false cruelty, dowry harassment and DV allegations

2) Wife filed WP in High Court falsely accusing the husband kidnapped his own son. The said WP was dismissed.

3) Wife filed for divorce while the husband filed RCR.

4) Wife refused to join matrimonial life alleging her and the child's life would be in danger at husband's hand.

5) Wife use to tie the child to cot as she is not able to keep a watchful eye on the playing kid.

6) Wife is poisioning the child with a mala fide intention to alienate the child from his father and paternal families.

7) Now she filed the evidence petition with content same as that of divorce OP except the last Para wherein while claiming for interim maintenance she admitted the following points :

"i am not working and i don't have any source of income to maintain myself and at present i am dependent on my age old mother who is a pensioner and her pension is being sufficient for her medical expenses etc and I have small kid who is aged about 2 years 3 months (but the actual age is 3 years 6 months)and i am unable to provide him basic nourishing food for his age.... The respondent herein inspite of financial capacity has not paid any amount even towards the medical expenses of my child who suffered with dengue fever last year and I with great difficulty borrowed some amounts and paid the bill of Rs30,000/- when my child was admitted in Healing Touch Hopital ".

Till the child attains age of five years the natural guardian of the child is mother.

Unless there are exceptional circumstances which warrant the custody of child to be given to father, court will not consider giving the custody of child to him.

Any idea on what those exceptional circumstances are ? and 

What are the parameters that court look for to decide the welfare of the child?

Any idea on what those exceptional circumstances are ? and 

What are the parameters that court look for to decide the welfare of the child?

Mother is too irresponsible, she is not taking care of child.  She is bed ridden so not in a position to take care of the child.  Not being able to sustain the child cannot be a reason, because the presumption is as a husband you are supposed to maintain wife and child.  If she is not in a position to sustain, you cannot allege that she is not taking care of child properly because of lack of money and so I want child custody because I have money to look after her needs better.  You cannot allege like that because you cannot take advantage of your own wrong.

Exceptionally circumstances could be any strong reasons other than financial (the financial responsibility lies with you so you can not claim that since she does not have money so she can not take care of the child.

Can you prove unusual cruelty to the child meted out by the mother ?  Or can you prove that she is a working woman and she is busy and hence she was not able to take care of the child ?  Or can you prove that she has mental illness that could put the child's life in danger ?  Does the child have love and affection only to you, but not to her ?

Infact some of her allegations that she was not able to provide nourishing food and was having difficullty with the medical treatment etc will go against you because you should have sent money regularly to her to maintain the child.  Not maintaining the child by the father clearly shows that the father is not interested in the welfare of the child and the court will definitely not give you the custody.   Having said that, I am sure you would have cared for the child as any mother would and would have gone through any difficulties and trouble to provision for the food and medical treatments. I am sure most fathers can take on the roles of the mothers and care for the babies younger than 5 years and they would love their children as much or more than a mother would.    However the following will go against you : 1) the age of the child currently and the traditional beliefs by the courts and society that the mother is more capable of taking care of the child in the tender age and 2)  that you have failed to maintain the child when the child was living in destitution (like no proper nourishment) and when the child was ill.   It also shows that the mother has with lots of troubles took care of the medical needs of the child, and it shows her love and affection towards the child.

You can go ahead and file for the custody of the child, but do not use her allegations and her inability to financially support the child.   Those liabilities are yours, not hers and it will go against you.  Please use the reasons like how good a father you will be.   Write in the peition how you will be handling a child of 3 year old while working on a job.  Will you be hiring a nanny or you will be working from home ?   Will you be cooking food for the child and will be regularly taking the child for medical check ups ?   Will you be admitting the child in the best schools possible ?  Will you be depositing and saving money for the child's future college education ?

The above petition would fail, but it will help you obtain the custody of the child in future.  Also it will show that you have love, care and affection towards the child.   Also, please maintain the child by sending money regularly.

Nobody can refuse you visitation rights.  Please apply for it.

"If the father is living, then in view of section 19(b) of The Guardians and Wards Act, 1890 thereof; no one else can be declared of appointed to tbe the guardian of the person of the minor, unless the Court is of opinion that the father is ’unfit’ to be a guardian; Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 166" 

Though my wife falsely tries to project me a psycho under who she and the child has threat to life, neither i am a psycho nor has she any evidence to prove the same. Under the circumstances, would i be given custody of the child if i include section 19(b) of The Guardians and Wards Act, 1890 in my petition ?

Please read the section in total, not just the sub-section.

19. Guardian not to be appointed by the court in certain cases 
      Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of   a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person- 
(a) of a minor who is married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or 
(b) 15[* * *] of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or 
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

 Please read the section 17:

17. Matters to be considered by the court in appointing guardian 
(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. 
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, s*x and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 
(3) If minor is old enough to form an intelligent preference , the court may consider that preference. 
14[* * *] 
(5) The court shall not appoint or declare any person to be a guardian against his will. 

If you are a Hindu then HMG 1956 is also applicable: The following are from HMG 1956.

6 . Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father; (c) in the case of a married girl-the husband;

However the section 13 is the most important :

13 . Welfare of minor to be paramount consideration.- (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.

Read S.6 and S.7 of Hindu Minority and Guardianship Act, 1956.  That is more relevant legislation for you.