• Custody of a child

A couple has been living separately in their parents house after 6 months from their marriage due to misunderstanding. During this separation the girl live with her boy friend and have a male child and they are living happily. After 2 and half years the legal husband and girl had been applied mutual divorce. After 6 months from the case the girl decided to live with her legal husband with her boy friend's male 2 years old child. 
My question is
Can the boy friend get his baby legaly?
What is the procedure for that?
Is there any previous judgement ?
If it is please give me
How long it will take to take custody of the child?
Now she is living with her legal husband with her boy friend's son from November 18th after they dismissed their mutual divorce on 18th November 2016.
Is there any speedy solution to take custody of the child ?
Asked 7 years ago in Family Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

18 Answers

1) since child is only 2 years old custody would be given to biological mother

2) as biological father you can seek visitation rights for child

3) chances of you being awarded custody are bleak

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

1. The biological father of the child can maintain a petition for guardianship and child custody in the competent court. In a dispute of child custody the guiding principle for the court is the welfare of child and not the rights of parents under a statute.

2. It may take about 2 years for the case to be decided by the court, albeit if there is inordinate delay then the father can move the High Court through a writ petition for an expeditious hearing.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

1) husband can file case of adultery against boy friend under section 497 of IPC

2) it is an offence to have physical relationship with married lady without her husband consent

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

1. Yes, the boy friend can surely file custody suit to get his child back. Since the child was born beyond the marital bond, the lady is bound to return the child.

2. Yes, sue the suicide note in custody suit. It would help immensely to get back the child.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

5.0 on 5.0

1)custody of child would not be given to boy friend even if he is biological father as son is only 2 years old

2) mothers lap is regarded as gods cradle

3) biological father would be granted visitation rights for the child

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

1) please try to understand that child is only 2 years old

2) no court will give custody of child to biological father at such young age .

3) apply to court at present and seek visitation rights for your son

4) name of biological father must be reflected in birth certificate of child

5) since child was with his biological father from time of his birth child would remain attached to his father only

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

what was name reflected in original birth certificate?

2) if name has been changed by registrar of birth then you produce hospital records which reflect your name as father . call upon registrar to revert to original father name reflected in BC

3) if registrar refuses file writ in HC to direct registrar to reflect your name as biological father on basis of hospital records

4) if mother prevents the child to meet his biological father obtain court orders for visitation rights for the biological father

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

1) it has to be proved by you that you are biological father of child

2) it can be established only through DNA tests that you are the father

3) apply to court for DNA testing of child

4) on basis of court orders apply for change of name of child in birth certificate to reflect your name as father of child

5) court may award you visitation rights once a week

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

My question is

Can the boy friend get his baby legaly?

The boyfriend has to file an application before court claiming his child in the capacity of biological father.

What is the procedure for that?

To file a petition under guardians and Wards act seeking seeking custody of his child.

Is there any previous judgement ?

There are lots of judgments, you can search in the internet

If it is please give me

How long it will take to take custody of the child?

It depends on how long the case runs in the court

Now she is living with her legal husband with her boy friend's son from November 18th after they dismissed their mutual divorce on 18th November 2016.

Is there any speedy solution to take custody of the child ?

The child custody case and the conduct of speedy trial by the advocate is the way and reliability for a speedy disposal.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

My question was

1. is there any chancec to give the complaint against that boyfriend by that legal husband.

This is a case of adultery, hence there are possibilities for the legally wedded husband to lodge a criminal complaint against the paramour of the wife and the illegitimate child is a live evidence to prove his case for the adultery offence.

The punishment for adultery may extend upto 7 years of imprisonment.

2. During the separation period the girl try to attempt suicide due to her husband and his family torture. After that the boy friend living together to secure her life(boy friend having that suicide note now also written by her against her legal husband and his family members). the boy friend and the girl living together and have a child . Is it offense or not.

It is an offence as far as the legally wedded husband is concerned and the offence will come under section 497 IPC.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

I have no birth certificate. But have DNA REPORT. should the court give the cudtody of the child to the boyfriend when the mother living with her husband, even if the child age is 2 years?

Remember that just because you have proved that the child is yours, the court will not accept your pleadings to hand over the custody of the child to you. The mother also has equal rights on the child, hence the court may order the custody to the mother also.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

But the mother is misguiding the child like she change the father of the child. So the child will call her husband as father. The child was with boy friend from the birth of the child. Last 2 months only separated by her man. So in society most of the person know the child as that boyfriend child. Sothat in future if the child know his real father , child feel guilty and child careers should be spoiled. In this point that boy friend claim the custody of the child

All the above things can be added as pleadings in the petition seeking custody of the child by the paramour of the girl.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Now also the child attached with his real father. But the mother stop the child to see the real father. the real father feel that the child is with her mother's husband, he will harm or kill the child or torture the child.

In birth certificate can the court change the real father name inorder to her husband name?. Because now birth certificate contain her husband's name.

Change of name in the birth certificate is a different subject dealt with by a different authority. It has nothing to do with the court case seeking custody of the child.

If you found that the name of the father has been changed to her legally wedded husband than that of the biological father, then you may issue a legal notice to the authority based on the evidence you rely upon and demand to change the name to its original or biological father's name and this can be pursued by a legal case in case it is found to necessary.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Can the boy friend change the name of the Father in birth certificate using this mutual divorce document and DNA report?. Because now the mother's husband says the child is mine as per birth certificate report afer dismissed the mutual petition.

The joint petition filed seeking mutual consent divorce shall be a substantial evidence wherein it was stated that they do not have any children out of their wedlock. This child if proved by DNA test that the boy friend of the wife is the biological father then, the acts of suppression of fact by the girl and also depriving the rights of the biological father shall constitute some ingredients for convincingly seeking child custody by thre paramour of the wife.

What should the boy friend do?

He should organise the case and its pleadings strongly based on the evidences and merits in his side with the help of his advocate.

How long will it take to change the name of the Father in Beth certificate? Because the child may go to school

Obtain an order from the court directing the authorities to rectify the name of the father of the child, it will be done immediately by the authority.

What is the duration time of visitation rights? I mean weekly one day(24) hours or 2 days

It depends on the court order.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband

2) if wife was with consent of husband staying with you as borne out by evidence of husband family members it would affect husdband case of adultery against you

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

The legally wedded husband can lodge a criminal complaint against his wife's paramour for the offence of adultery with his wife, the evidence for adultery is the child born to them both. This will make sure that the paramour may face conviction.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

1) the husband has to prove allegations made in complaint

2) husband can file adultery case now

3) boy friend has to contest it on grounds that he had sex with complainant wife with his consent

Ajay Sethi
Advocate, Mumbai
95198 Answers
7607 Consultations

5.0 on 5.0

The question of filing adultery offence case against the paramour will depend on the decision made by the husband.

What if the wife provokes her husband to file a adultery case against her paramour to wreak vengeance on him.

The husband is not barred from filing criminal complaint against his wife's paramour for the offences of adultery.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer