• Child custody age

I got married on July 2009, I have a 5 and half year son and my wife is 5 month pregnant.
If I choose to fight for divorce case, can I fight for my son's custody as per 'Hindu Minority and Guardianship Act' ?

Local lawyer here says that until child is 7 years of age, custody is always given to mother but internet says
The mother usually gets custody of the minor child, under the age of five. Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.

Can someone please clarify ?
Asked 4 years ago in Family Law
Religion: Hindu

2 answers received in 10 minutes.

Lawyers are available now to answer your questions.

20 Answers

Yes , you can fight the custody of your 5 and half year child as the law says that generally the custody of child shall be with mother. In cases of child custody the welfare of child is primary concern so you can always fight for custody and court can give interim orders and final based on facts and circumstances.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Section 6. hindu minority and Guardianship Act,

Natural guardians of a Hindu minor.-

The natural guardians 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 the 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 expressions 'father' and 'mother' do not include a step-father and a step-mother.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) you may not get sole custody of your 5 year old son . you cna seek joint custody of son

2) welfare of child is paramount consideration

3) you would be awarded visitation rights of the child

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Yes you have to file custody under section 6 of Hindu Minority and Guardianship Act .

The child above 5 years of age can be claimed by father.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Generally the custody of minor is given to mother as she can take care of the child initially in better manner. But other factors like mother's character her financial condition etc has to be also taken into consideration. End of the day the child is also asked with whom he himself is also interested and comfortable to stay with.

Prashant Nayak
Advocate, Mumbai
27289 Answers
88 Consultations

4.4 on 5.0

Dear Sir,

There is no jacket formula for custody of children. The main consideration would be welfare of the children. Depending upon merits of the each case interim custody of children will be ordered. In your case since your wife is pregnant as such she cannot concentrate on the elder child for the next 5-6 months. Thus there are chances of handing over custody of elder child to you provided you have all facilities to brought up your elder child. If you are fighting for divorce and your future course of action would be for second marriage after divorce then I am not in favour of taking interim custody of elder child. You can have children through second wife. Please think wise before taking such complicated decisions keep your future life free of any encumbrances.

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

CIVIL APPEAL No. 1966 OF 2015

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.

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

The predominant criterion is the interest and welfare of the child and the parties cannot claim their legal rights by citing the provision of law.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

You can definitely contest and seek the custody of your child and since your child has already crossed the age of 5, you have good chances to succeed in your endeavour.

Yes, the welfare of the child is of paramount interest.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

No, this does not depends state wise.

You can definitely go ahead and fight for your child's custody.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

2)in you case since your child is over 5 years old you can seek custody of your child

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Hello,

Do not believe on what internet says. First read the appropriate section which is as follow:

6.Natural guardians of a Hindu minor.-

The natural guardians 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 the 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 expressions 'father' and 'mother' do not include a step-father and a step-mother.

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

No it doesnot depend on state it is based on Hindu minority and Guardianship Act and it is the central act.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

The section clearly uses the term ORDINARILY and therefore, you have all the right to file the case of custody.

Welfare of the child is of paramount importance while deciding the case of custody of the child.

Take advise from some other local lawyer and file the case of custody.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

No.

Act is in force in India except j & k

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

There is no strict rule as such. After child is five years you can seek for custody..the court will consider the welfare of the child and that will be paramount consideration. As such you better file for joint custody of child and each case is decided on facts and circumstances and there is no straitjacket formula. As such it is advisable to file for joint custody.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Under Muslim Law, the custody of children below the age of 7 years is given to the mother, not under Hindu Law. The Courts are usually inclined towards granting custody of the children in favour of the mother. However, given that your wife is pregnant, i would not advise you to initiate cases against her at this stage as it can go against you in the future.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

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.

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.

So you are entitled to get custody of son, if you apply now.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Getting custody is immaterial, but filing a petition claiming your rights will have a positive impact and the court will consider several aspects in future. Advise you to file irrespective of the outcome.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

No doubt the child's interest is paramount.

You can apply for child custody case also.

Let the court decide, dont bank upon on somebody's opinions and lose your valuable time

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

You can file a child custody case and fight for your rights.

They are ill equipped about the legal knowledge in this regard. There is no such law that you canot file child custody case at all till the child turns 7 years old.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer