• Child custody

I was married 12 years ago and have a daughter 10 years and son of 6 years 9 months old.. My wife filed 498a in Jamshedpur in September 2017 and took both children to her mother's place in Raipur.. There she filed 3 cases:under DV act, maintainance u/s 125 and a divorce case. My in laws do not allow me to meet or talk to my children. Further as stated in DV act case and maintainance case that my daughter is going to a particular school , I found out that she has not been admitted to any school.. Both my children are born in Jamshedpur, schooling in Jamshedpur, address in aadhar and passport is of Jamshedpur.
I want to know where can I file case for custody of my children.
Under which Act and under what sections should I file custody case. 
Is my physical presence required for each date in court.
How long it takes to decide custody case.
Do I have any other remedy available apart from custody case?
Asked 4 years ago in Family Law
Religion: Hindu

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15 Answers

1. Since till September , 2017 the children were with in Jamshedpur only it alone will be considered their ordinary place of reisdence.In that context you can file custody suit in Jamshedpur only.

2.It is to be filed under section 25 of the Guardian and Wards Act,1890.

3.Your personal presence on each date is not mandatory.

4.Custody suit like any other civil suit takes time.So keep patience.

5.You cna seek visitation rights of the children in the DV case as well in divorce case also.

So you can explore three legal options simultaneously for custody/visitation of the children.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) You can file custody for both children in your city Jamshedpur. However in most of the case girl child custody is kept with mother till the age of 18 years as she is the naturally best care taker. You may get custody of son as he is not minor.

The sole or paramount consideration in child custody decisions is welfare of child, so first drive out all those thoughts in your mind that “mother is always best for child”. That can make for some good Hindi movie dialogues, but in courts that thought process won’t be of much benefit to a father.

If you want to prove that wife/mother is quite incapable or is neglecting the child, which is rarer, then you may decide to ask for full custody of child. Here you will have to make some statements showing wife’s neglect etc, and how you can take better care of child. Since most men have full time work/professional responsibilities, you should mention some points about how the child will be cared for when you are at work.

Since proving neglect by mother is usually difficult, you may want to instead take the approach where you can ask for shared custody/guardianship where you can ask for 50:50 time, which is quite feasible if everyone lives in same city. Or if child lives in another city with mother as of now, then you can instead ask for custody of child during summer vacation, other school holidays, free access whenever you visit child’s city, access over phone/internet and such practical and feasible means of keeping in touch.

2) You have to file child custody case under

The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. Jains, Buddhists and the Sikhs are also included under the definition of a Hindu.

a) As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.

b) The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.

3) Yes you have to personal attend the case for child custody.

4) How long time its take. The answer is its depends upon court proceedings and how many cases are pending before your case number.

5) Yes you have another remedy than child custody, make compromise with wife for children and live happily married life.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

The case has to be filed under .Section 6 of The Hindu Minority and Guardianship Act before the family court and you have to seek custody of your childrens raising all such issues before the court.

The section 6 reads as follows

Section 6 in The Hindu Minority and Guardianship Act, 1956

6. Natural guardians of a Hindu minor.—The natural guardian 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 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: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section—

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expression “father” and “mother” do not include a step-father and a step-mother.

2) No your Advocate can handle.case you donot need to be there every time.

3) It takes some time after your wife file reply though you can file.an application for interim orders stating education of your children is getting hampered the court can make interim order till it decide the case.

4) Mutual agreement with your wife if she doesnot you have to seek custody of your.child from.court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Custody case is to be filed under section 25 of the guardian and wards act.

The same is filed at the place where the wards are presently residing.

Yes your presence will be required on all the dates.

It will take 2-3 years. Till then visitation rights will be provided to you.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi,

The custody petition may be filed under section 26 of Hindu Marriage Actin the family court on basis of the non admission of the children and you Will get immediate relief in this regard.

If you present in the court will be good but your advocate may get the permission from court for your absence and when call by the court you need to appear.

The time depends on the response from the respondent but there will be some immediate relief for education etc.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1)you have to file case for custody of children at raipur as both children are residing in Raipur

2) your physical presence is not required for each date in court

3)custody cases take around 2 years to be disposed of

4)you can file application under section 25 GWA................ custody of child section 12 GWA................for visiting rights and interim custody

5)in existing divorce petition filed by wife you cna make application under section 26 of HMA

6)Section 26 in The Hindu Marriage Act, 1955 26. Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Approach the Family Court at Raipur and file a child custody case under the Guardians and Wards Act.

As an interim measure, seek visitation rights so that you're permitted to visit and see your children periodically during the pendency of this child custody case.

Contact a local Lawyer at Raipur.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Dear Sir,

My answers as follows:

I want to know where can I file case for custody of my children.

Ans: Yes, you can file. But my personal opinion is not to file. Let her undergo atleast the agony of bringing up your children. Try for only visiting terms.Bring the children during vacation and enjoy with them Think that they are in hostel. Any how take a direction against your mother to get admit in a good school and to produce proof.

Under which Act and under what sections should I file custody case.

Ans: It will be taken care of your advocate.

Is my physical presence required for each date in court.

Ans: Yes, only frequently.

How long it takes to decide custody case.

Ans: 6 to 18 months.

You may take shelter under following Act also

CHILD RIGHTS COMMISSION ACT 2006

http://www.kscpcr.com/eng_ver/actsandrules.php

Please read the following and visit the link.

Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

You can file a child Custody case in the place where the child is currently residing for effective result.

You may have to attend court on each and every hearing.

The time taken for disposal cannot be predicted.

You can file the child Custody case under the provisions of guardian and wards Act.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Hi,

You may file child custody case at Jamshedpur under section 6 of GWA in family court. Your physical presence not required on every date.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

you can seek custody of child in ongoing DV/ divorce case

2) since children are in Raipur better file application for child custody in Raipur

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

No a separate case is to be filed in order to claim the custody and that will be a better option to exercise.

Same has to be filed in RAIPUR, as the wards are there.

The custody petition is filed at the place where the ward is residing.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You may have to file a separate case for child Custody and in that itself you can file a petition seeking visitation rights to visit your child as an interim relief.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

In the pending divorce case, you can only seek interim custody of your children.

It is better you file a fresh case under the provisions of the Guardians and Wards Act seeking custody. Move an application for interim relief to claim visitation rights during the pendency of this case.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Hi,

You are suggested to file cases at Jamshedpur.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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