• Custody of my kids

I have 2 daughters (4.3 years and 2.5 years) I stay in Botswana..I want to divorce my husband as he and his family has from time to time given and are still giving me a lot of mental and emotional stress..(6 years of marriage) I can’t leave from here as he has taken away my kids passport with him.. (we are Indian passport holder) I m trying legal help with the embassy here to get the passport for kids..but will I able to get the custody of my kids in India when I file for divorce.. and until the whole procedure in India will I be able to keep the kids with me..please advice regards
Asked 4 years ago in Family Law
Religion: Hindu

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27 Answers

The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. 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. Also custody is give for best interest of child.so you will probably get the custody of your child.

You can seek custody of your child by applying in court for custody along with divorce and maintenance.

Yes you can get the interim custody of child.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1)welfare of child is paramount consideration

2) you can file for divorce in India if marriage was solemnised in India

3)you would get custody of your children

4) husband would be awarded visitation rights

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

he is the biological father of child he can retain the child passports in his custody

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Yes make a police complaint asap inform indian embassy instant. Yes it is criminal offence as the passport in foreign country is valid id any should be held by holder on who's name it is.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

No one is authorised to hold the passport except by the police on order of the court.

Please file a case against him in Botswana police for holding the passport.

Till the age of 5, children are naturally be in the custody of mother if she is at the normal mental state and after 5 years the husband may claim the Custody but court considers the situation and asks the children of their choice as well.

You may claim maintenance for the children when you file divorce.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

you can call the police helpline if husband is trying to throw you out of the house without the kids

2) file written complaint in local police station of domestic violence

3) keep copy of the complaint with you

4) it would help you in making out a case for divorce on grounds of mental cruelty

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

File a complaint ho harassment with local police of Botswana also so that if he creates any trouble there and you have record to present before indian court.

Don't worry you will get the custody present an application before Indian court instantly.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) Yes you can make police complaint against him in police station and take passport in your custody.

2) As per Indian Guardian Act, girls are custody with mother till the age of 18 years so you have rights to keep daughters with you.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Lodge a complaint of 498a against your husband for torturing you and kids against all including your in laws.

File custody case as well as allegate that he has forcefully kept your passport

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1. Do not worry as if you retain the children with you then there is no issues iheir custody and your husband will have to file suit for their custody.

2.If your husband has taken their passport with him then the Indian embassy will issue a one time travel permit so you can reach india .Once In India you can apply for their passport once again.

3.Once in india you can file host of civil and criminal cases for the atrocities done to you.So presently try to bring your children to India first.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Yes, because your kids are still below 5 years of age, the court will not hesitate to grant their interim custody to you.

At any time you apply for a divorce, seek interim custody by preferring a separate application.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

He cannot confiscate the passports of the kids.

You may report this matter to the local Police.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

You need to file divorce and also custody of child in India. yes you can keep your kids till the court doesn't award the same to your husband.

Prashant Nayak
Advocate, Mumbai
27274 Answers
88 Consultations

4.4 on 5.0

Hi,

You can take help of local police and embassy there to get your passport.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Hello,

The custody of the child depends on their welfare. Welfare is of paramount importance while deciding the custody of the child. You keep the custody of the child and let him file a case for custody

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

He can not withhold the passport of the children. Lodge a complaint with regards to this

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Take help of the Indian embassy there. Also tweet to MHA, they might give you a good response by means of the twitter handle.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. If you already have the custody of kids with you then I would suggest to not to file any petition for child custody in India. Rather, file a suit for permanent injunction to restrain your husband from directly or indirectly taking the kids out of your custody in an unlawful manner. In India the courts do not ordinarily uproot the kids from the parent in whose custody they are. So take preemptive measures to stop him from illegally taking the kids out of your custody when you are in India.

2. A police complaint can surely be filed against him for not returning the passport of kids.

3. If and when he files a petition for declaration of guardianship and child custody then you can contest it fittingly.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Once you are in india, file a petition for dissolution of marriage. He may file a petition for custody. Then, challenge the petition,the indian courts consider the child's interest and welfare as the dominant factor in awarding custody.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Madam,

Taking into consideration the tender age of children you are entitle for custody of them. The father cannot take passports of children for taking illegal benefit under such document. You are advised to lodge a complaint as proposed.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Don't worry he can't throw you out of house. Fight for equality rights.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. Both the kids are daughters and under 5 years of age.

2. Mother is considered as the natural guardian of her children up to their 5 years of age and thereafter custody of children are awarded considering their welfare. So, your husband shall have to prove irrefutably that your daughters will be better taken care of if their custody is given to him. Ordinarily, custody of daughters are given to their mother for obvious reason.

3. Any how, your husband shall have visiting right for visiting them on Court permitted days, time and places.

4. You can file the divorce suit on the ground of cruelty submitting evidence in support of your allegation.

5. You can also try to negotiate with your husband to jointly file a mutual consent divorce petition on agreed terms which shall be decided with in 6 & 1/2 months from the date of its filing.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1. You can certainly lodge a police complaint against him for taking away your daughter's passport but it will be difficult for you to prove your allegation.

2. He may refute your said allegation.

3. Try to arrange to get the passports afresh which is not difficult to get at all.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1. Lodge police complaint against him for his harassing you and fro trying to throw you out of the house without the kids.

2. If you file the divorce suit then you can also file an application demanding maintenance for your daughters ( and also for yourself if you are not employed or earn mush less than your husband) which will be allowed by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Since your children are with you in that country, they are deemed to be under your care and custody, especially in the absence of their father in that country.

As your husband has done lot of cruelties to you, it would be better that you file a domestic violence case against him which should include his avenging attitude by taking away the passport of your kids.

On this basis you may report the matter to the Indian Embassy there in that country and apply for duplicate passport by making the original passport invalid.

Whether there is a provision or not, the authorities will come out a solution for this becasue your kids cannot live in a foreign country without any valid passport.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Is it legal to hold my kids passport by my husband jus because he doesn’t want me to relocate. Can I make a police complain to obtain the passport from him

You can very well lodge a police complaint against this illegal act, because it is against the interest and well being of the children.

In India you may file child custody case but if the children are with you, just dont be bothered about it, if he needs the children let him apply for it which can be challenged properly by you in the court of law.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

But he is doing only to harass me and throw me out of the house without kids

You can book him under domestic violence case and seek relief.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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