• Child custody - suggest a strategy

Dear Lawyer, 

I am a educated professional running a successful firm, belong to a educated and well off family. My ex-wife is 12th pass, belong to lower middle class family with no educated family members. 

Divorced her as I caught her cheating and discovered she was involved in adultery, despite being forgiven once she continued cheating so I finally divorced. The boy is of 3 year old & is with her. 

Recently my child was sick for over 3 weeks and she did not get her treated, when she finally went to hospital the hospital advised admission which she refused. We have report form hospital stating the boy was sick for 3 weeks and she declined him to be admitted. Endangering his life...later he was disgnosed with severe blood infection and treated I paid for the bills. 

Custody Petition: 
- Highlighted above medical carelessness by mother. - Submitted hospital records. 
- She has suicidal tendencies - Submitted Her self written suicide note.
- Highlighted her cheating and adulterous nature. - Submitted her written confession and apology letter.
- Her pics with boyfriend in hotel room - Subitted the pics to court. 
- Whats app and Facebook chats - All submitted to court. 

P.S: All documents and pics and other calims in my petition are 100% genuine. 

Her Counter: 
-She denied all charges and termed all the documents as forged. 
-But accepted she was sucidal after divorce and her parents stopped her. 
- She is claiming I am after the life of the child and I was to kill the child. 

The counter was submitted last week and I have enquiry this week. 

My Question:
- What to expect during enquiry? 
- What are my chances of getting intreme and final custody mainly on medical reason? 
- If my intreme custody application is turned down my family court, do you see potential in appealing the case to high court? 

Most of the lawyers I met , even those who do not have commercial interest in my case, are very hopeful. 

Your opinion and if you can suggest a strategy or points I should highlight to the court.
Asked 5 years ago in Family Law
Religion: Muslim

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11 Answers

1)the custody of a minor child in Islam is called Hizanit, which literally means the care of the infant. As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Thus under the Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain majority on attaining puberty.

2) Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed.

3) Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity “

4) welfare of child is the paramount consideration in deciding issue of custody of minor children

5) in the present case mother has been negligent and is not taking care of the son as is evident from hospital medical records

6) on said ground court can award you custody of your son

7) in case you lose before family court you should file appeal before HC

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

1. No enquiry would be made in civil suit.In the custody suit you will have tender evidence in support of your case and if the same is proved then you can get divorce.

2. The final custody can be allowed only if you can manage to prove that welfare of the child is at stake with her.

3. However you will surely get the visitation rights which may include interim custody like keeping the child during weekends etc.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
407 Consultations

5.0 on 5.0

1. It is not clear as to what enquiry is pending and who is conducting the said enquiry in connection with your child custody peitition.

2. Child custody is decided considering the welfare of the child. However, mother is considered as the natural guardian of her child up to his/her 5 years of age and in the instant case, the child if just 3 years old for which there is a very high chance of your prayer for the child custody is denied.

3. No. Unless you can establish that it will be extremely risky for the life of your child if he continues to stay with your ex-wife, you are not likely to get custody of your child. it will be prudent on your part to wait till your child completes his/her 5 years of age.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

mother should not be awarded custody of the child as child life is danger on account of mother negligent attitude, her mental illness .

2) you should emphasise on fact that mother can harm the child if she is granted custody

3)you are at liberty to move HC against court order rejecting your application for interim custody of child

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

Her suicidal tendencies and adulterous character can definitely go against her. But it has to be proven i.e. you must bring some evidence regarding this like witness, document, footage.

Your chances of getting custody go higher if you can prove to the court that the kid is safe with you and you can bring him up well.

Deepak Tiwari
Advocate, New Delhi
91 Answers
14 Consultations

4.5 on 5.0

1. We are not aware up to what extent you are aware about law for which answers in details are provided. However, since the child is just 3 years old, the child custody case is already tilted in favour of your ex-wife. To counter balance the said tilt as permitted by law, you shall have to irrefutably prove that your child's life will be in danger in her custody. (Your child's character building or future training will not be considered as important in such cases as the court will consider that biological mother's care is most important and essential for the child up to his/her 5 years of age).

2. You shall have to establish that your child's life is not safe in her hand because of her mental state. Medical Certificate establishing her adverse and unstable state of mind is required to be collected by you.

3. You shall have to conclusively establish that she does not have the normal mental state which is required for child raring.

4. If your I.A. is rejected, file the appeal before the appellate court challenging the said order.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

My Question:

- What to expect during enquiry?

Beginning of enquiry means the trial of the case filed by you will begin.

You have to file your evidence by filing an affidavit which is called as chief examination and after that you will be cross examined by opposite lawyer.

- What are my chances of getting intreme and final custody mainly on medical reason?

From your contents and the documentary evidences you have produced before court, there are chances that you will first get an interim orders in yor favor and if you fight it out vigorously, the 3 years old child may be ordered to be under your custody owing to her adulterous life and her suicidal tendency which has been admitted by her.

- If my intreme custody application is turned down my family court, do you see potential in appealing the case to high court?

Instead of preferring a revision to the dismissal decision, you may concentrate on the main case and also for visitation rights as interim relief.

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

I need your help an guidance in order to use the above points to my benefit. How should I play those points?

My other important question was: Currently only I.A is being heard, the main O.P will be in August. If I am turned down on intrem custody can I move High Court ? And will the above points be useful in High Court?

You have filed IA for interim custody, this may or may not be allowed, however you may prefer to file another IA seeking visitation rights as an interim relief

Her admission of suicidal tendency shall be a plus point on yor side. The compromising photographs to prove her adulterous life shall be a great support to your claim.

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

1) you can file petition in HC for early date of hearing of your custody application before trial court

2) go by your lawyer advice

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

The CRP is against the dismissal of advance hearing petition, which is not advisable

You can fight the child Custody case on merits and you have chances of success more.

T Kalaiselvan
Advocate, Vellore
79182 Answers
1611 Consultations

5.0 on 5.0

1. Which order of the family court your are planning to challenge before the High court?

2. What will be your prayer before the High Court?

3. If you are planning to file C.R.P against the dismissal of your advancement petition, the High Court will not decide about the child custody but about the dismissal of the advancement petition only.

4. The family court has not yet dismissed your child custody case for which the said matter will not be heard by the High Court.

5. Based on the above I will not advise you to challenge the said dismissal of advancement petition before the High Court since before the case comes up for hearing, the family court may hear the matter on last week of August.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

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