• Custody of a 5 year old girl child

I was married in 2011.. i told my husband abt my past.. He use to mentally abuse me all the time.. In 2016 i got emotional attached to someone.. I use to talk on phone with him as he was not in India.. after few months i realised tht i was doing wrong and seeing a good situation i told him.. first he said he'll not leave me.. next day he said we'll get divorced.. i have a 5 yrs old girl child.. he emotionally blackmailed me for keeping the child with him by saying my parents will die without her.. i went on a mutual divorce with him agreeing tht the child will remain with him.. now i want my child back.. do i have chances of winning the custody?. right now my husband is a student he is not earning as well
Asked 7 years ago in Family Law
Religion: Muslim

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7 Answers

1) you have signed consent terms wherein you agreed to give child custody to your husband

2) welfare of child is paramount consideration

3) make an application to court for custody of your daughter

4) take the plea that you were forced to give custody to your husband

5) further as per the provision under Section 352 of the Mahomedan

Law, the mother is entitled to the custody of her male child until he has

completed the age of 7 years and female child until she has attained puberty.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Even if you had an extra marital affair it does not dis entitle you to your daughter custody

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

Hi

The custody petition has to be on the bais of the facts stated in the divorce petition and in the terms and conditions what you agreed .

If there was a term you agreed that permanent custody of your daughter will be with your husband now you you need to prove a reason why you are asking for the custody.

You being the biological mother is the natural guardian , you can get the custody of your daughter , fight for it in the court.

The whats Aapp messages may or may not be brought in the court. in a divorce matter this can be used as an emotional cruelty against the spouse, but in custody matter the message will not prove that you are continuing the relationship.

This will not be an impediment for the custody.

Your husband has to prove that you are not a fitting parent.

since he is not earning is a good reason for you to ask custody and mention that your daughter is not happy and not kept well by him and his family.

you consult a lawyer with your divorce papers and the decree copy. whether you get the custody or not please try for it as your daughter will be better brought up with her mother.

Thresiamma G. Mathew
Advocate, Mumbai
1642 Answers
212 Consultations

5.0 on 5.0

1. I understand that you have already availed decree of divorce by filing a MCD application wherein you have agreed that your husband will have the custody of your child.

2. You can not file a child custody petition on the ground that he is not employed for which you should be given custody of your child for her welfare, if you are employed or having financial resources more than him.

3. If properly planned and executed, you do have a chance of getting custody of your daughter since mother is the natural guardian of her child up to his/her 5 years of age and mother gets custody of her girl child even after her 5 years of age for obvious reason.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. You shall have to establish that you do not have any affair now and is entitled to your daughter's custody for her welfare.

2. Child's welfare is considered as of prime consideration while awarding his/her custody.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Whether the court has decreed the child custody to him in the child custody case?

Whether you have given your consent to give away the child to his custody and have made an affidavit to this effect before the court and whether the court has mentioned this act in the judgment?

If yes to all above then there are very bleak chances even if you apply for child custody case afresh now.

If no, then you can file a child custody case and can argue and put forth your merits with documentary evidences to retrieve your child to your custody.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

Can they prove in the court by taking out WhatsApp aur Facebook messenger chat history tht i have an affair?? If they prove what are the chances of me getting the custody?

Whatsapp or facebook message cannot be taken as evidence for such things, they have to prove that,

You can fight it out on the basis of natural mother

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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