• Custody of my 5 year old son

Hello Sir, 

My wife has taken my son from me who is 5 year old and he is interested in staying with us. How can I get my son custody back but still we have mot filed any case for divorce.

Please assist.

Best Regards 
Kumarswamy
Asked 1 year ago in Civil Law from Navi Mumbai, Maharashtra

Hello,

You will have to file a case of custody under the provisions of the guardianship and wards act. The same will have to be filed at the place where the ward is residing.

Regards

Anilesh Tewari
Advocate, New Delhi
16920 Answers
259 Consultations

5.0 on 5.0

Sir a petition for custody can filed under section 25 Guardian and wards act for the custody of child. You need to plead before court that you shall be granted with custody of child as this would in best interest and welfare of the child. filing divorce is not necessary for the custody a custody petition can be preferred.

Shubham Jhajharia
Advocate, Ahmedabad
19398 Answers
76 Consultations

5.0 on 5.0

File a case for custody of your child at the court having jurisdiction over your locality. Whether or not you have filed for dovorce, does not bar you from demanding custody of your child

Tathagata Sarkar
Advocate, Kolkata
9 Answers

4.0 on 5.0

Before issuance of visa a permission from the biological father is required.

Also, you can file a case and and take interim relief to that effect.

Regards

Anilesh Tewari
Advocate, New Delhi
16920 Answers
259 Consultations

5.0 on 5.0

1) Yes , you can get the custody of your son.

Child Custody Under Hindu Law. Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. ... It is only the child's welfare which is the focal point for consideration.

2) You can get the Injunction from court to ban travelling for your child.

Ganesh Kadam
Advocate, Pune
7519 Answers
65 Consultations

4.9 on 5.0

See before taking him outside India for VISA they require father consent further from school though as an guardian she can obtain a transfer certificate. So here is thing you can file the custody petition and take an interim stay order on her going abroad, or anywhere else and taking tc from school till disposal of the case.

Shubham Jhajharia
Advocate, Ahmedabad
19398 Answers
76 Consultations

5.0 on 5.0

1. If the custody of the child was taken from you forcefully then you could lodge a complaint of kidnapping.

2. If not or considerable time has passed since then no such case will lie anymore.

3. For taking back the custody of the child you need to file a case for the same in the civil court and therein seek injunction on his foreign travel without the permission of court.

4. In the custody suit you will be granted with visitation right in the interim stage if you seek such relief.

Devajyoti Barman
Advocate, Kolkata
17824 Answers
253 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

Q.My wife has taken my son from me who is 5 year old and he is interested in staying with us. How can I get my son custody back but still we have mot filed any case for divorce.

Ans: you can file child custody case. The SC judgment is given below.

Q.She has taken the passport of her and my son with her. Can i stop her from flying outside mumbai / india. And can her take tc of my son from the school without my concern.is there any law that before taking any decision of my child they have to take my concern.

Ans: For immediate stay of departure you may approach the HC under Article 226/227 of Constitution of India.

====================================================================================

CHILD RIGHTS COMMISSION ACT 2006

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

The Karnataka State Commission for Protection of Child Rights (KSCPCR)

4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE

NRUPATHUNGA ROAD, BANGALORE- 560 001

(080) 2211529

Such Commissions are situated in Every State

.==============

Bombay High Court

Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016

Bench: A.S. Oka

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO. 84 OF 2013

Forum for Fairness in Education An NGO,

Vs

Union of India and Others. .. Respondents

-

5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:

===================================================================================

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

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

CHILD RIGHTS COMMISSION ACT 2006

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

The Karnataka State Commission for Protection of Child Rights (KSCPCR)

4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE

NRUPATHUNGA ROAD, BANGALORE- 560 001

(080) 2211529

Such Commissions are situated in Every State

.==============

Bombay High Court

Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016

Bench: A.S. Oka

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO. 84 OF 2013

Forum for Fairness in Education An NGO,

Vs

Union of India and Others. .. Respondents

-

5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:

Kishan Dutt Kalaskar
Advocate, Bangalore
4440 Answers
112 Consultations

5.0 on 5.0

You need to file a custody case to get the custody of the children and on market and the willingness of the children you may get that subject to contest by wife.

During the proceeding you may request the court to give direction regarding the transfer and relocation of the children.

Vimlesh Prasad Mishra
Advocate, Lucknow
5530 Answers
18 Consultations

4.9 on 5.0

You should file an application before family court and seek custody of your 5 years old child

2) welfare of child is paramount consideration

3) court would award you visitation rights

Ajay Sethi
Advocate, Mumbai
67030 Answers
4046 Consultations

5.0 on 5.0

You can obtain court orders restraining wife from taking child abroad without your consent

2) request the school not to give TC for child without your consent

Ajay Sethi
Advocate, Mumbai
67030 Answers
4046 Consultations

5.0 on 5.0

not possible. u can only visit

Konda Srinivas
Advocate, Hyderabad
208 Answers
1 Consultation

Not rated

Firslty, please file a case of custody as soon as possible so that she can be answerable to you before going anywhere with the child.

Secondly, thought the custody may not be given to you for the reason of so small of being the child, but yes visiting right you can surely get as the conclusion of the save.

Thirdly, I am saying no custody to the father because there are presumption on the law of our country that a child specifically a small one is best taken care of live with mother.

Sanjay Baniwal
Advocate, South Delhi
4895 Answers
11 Consultations

5.0 on 5.0

you should file the custody petition along with visitation rights.

Jai Bansal
Advocate, New Delhi
198 Answers

5.0 on 5.0

Dear Client,

Without father permission, no VISA will be allowed to son. In any importation decision your consent will required. You can also seek stay from court under Guardian and wards act to stop from flying abroad.

Yogendra Singh Rajawat
Advocate, Jaipur
13251 Answers
18 Consultations

4.6 on 5.0

Dear,

yes you can, file case for custody under minority and guardianship act,1956.

Under 5 years of age right of child custody given by court to mother only.

But your child is above 5 years of age,so no problem for you.

For your second problem, i would say that nobody gives permission to your child

without your permission, so go to court and take immediate order from court for stopping

their journey.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

You can file a petition under Section 25 for custody of your child under the Guardianship and Wards Act. As the child is 5 years of age, you might get custody of the child.

Siddharth Jain
Advocate, New Delhi
4785 Answers
52 Consultations

5.0 on 5.0

You should seek an injunction order from the courtagainst your wife refraining her to take the child abroad, without the prior permission of the court.

For any urgent relief, you'll have to approach High court under Section 226 of the Constitution in order to stop your wife from taking your child abroad.

Siddharth Jain
Advocate, New Delhi
4785 Answers
52 Consultations

5.0 on 5.0

Dear Client,

She taking TC from school is immoral. Its not illegal because school might have thought that she is acting on behalf of both of you. School is not aware about the differences between you. Same applies for pasport- he is her son also.

Under the circumstances mentioned by you, it would be anytime better to move to Court of Law for getting interim relief. Court may direct your wife not to leave India till disposal of the case and may give a clear guideline to follow.

EXPERT JURIST LLP

Jyotishwar Bhosale
Advocate, Navi Mumbai
15 Answers
1 Consultation

5.0 on 5.0

You can file a child custody case seeking custody, but remember that you may file the custody case in the place where the child is residing now to progress the case faster.

It is not necessary that you have to file a divorce case for filing child custody case.

T Kalaiselvan
Advocate, Vellore
56755 Answers
706 Consultations

5.0 on 5.0

You cannot stop her from travelling abroad, you dont have any rights for that.

However since there is no such thing called divorce or child custody with her, you can file an injunction petition restraining her from taking the minor child abroad without the consent of the biological father being the natural guardian.

T Kalaiselvan
Advocate, Vellore
56755 Answers
706 Consultations

5.0 on 5.0

You can file the case for div and custody for the child in family court.

Prashant Nayak
Advocate, Mumbai
12963 Answers
23 Consultations

4.6 on 5.0

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