After talking mutual divorce from first husband, now i am married with a man legally. My 6 years old son is with my first husband where he is ill-treated because first husband also got married. Can I get custody and maintenance of my minor son?
Asked 4 years ago in Family Law from Suri, West Bengal
Hi, what is the order for child custody in your divorce for mutual consent, if there is no specific order, you can approach the court for child custody.
. you have not mentioned whether court had passed order granting custody of minro son to your husband . what were the clauses of consent terms relating to custody of child . if child is being ill treated you can request your ex husband to grant you custody . if he refuses try your luck in court
Minor child are committed to the custody of mother,a father who is proven to neglect the child is not handed with the child custody. However there is no hard and fast rule and the paramount factor in decision is welfare of the child. You can file a suit under Wards and Guardian Act in District or Family Court.
Court is mainly interested in welfare of child,if you can prove it you can get it.as far as your husband is concerned if he is not treating him well he might me interested in giving custody to you that you can explore other wise file a case in the court.
Advocate, New Delhi
You may get the custody of the Minor child from your ex husband. If in your mutual divorce order the custody of the son has been granted to his father, the same can be challenged by way of a review petition which though may be belated in your case however reasonable cause could be shown. The Paramount consideration in deciding the matter related to the custody of the child is his welfare. If the court feels that the child's welfare is being hampered then the order of custody can be changed. Before proceeding to file a suit under the Guardian and Wards Act, please make sure that your son wants to live with you because of the ill treatment being meted out by the father.
Did the court pass in its judgment any direction respecting the custody of your child to be entrusted to the father? If such a direction was incorporated in the judgment then it will be difficult for you to impeach the judgment and divest your ex-husband from the custody of your 6 year old son inasmuch as you will be required to challenge the judgment itself, coupled with the proof of ill-treatment of your son by your ex-husband.
If, however, such a direction did not form a part of the judgment of divorce then there is every likelihood that you may get the custody of your child having regard to his welfare.
Main criteria for minor's custody is his/her welfare. If you can show/prove cruelty to the minor in husband's custody and better welfare in your custody, the order can be modified by the same court.
being a mother of minor child you have right to file a custody suit before civil court under section 25 of Guardian & wards Act for custody along with an interim application u/s 12 of Guardian & Wards Act.
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Advocate, New Delhi
i fully agree with mr. qureshi
Advocate, Greater Noida