Sole guardianship is again a matter of trial before the learned court as to why exactly the mother of child seeking such, if the mother can prove it properly and satisfies the learned court with justiciable reasoning then only such can happen or else no one has the right to part children from biological parents as quoted in a recent Calcutta High Court judgement
Sole guardianship (single mother) of son
My sister will going to do a mutual finalization on her divorce case. She wants to be a sole guardian of her only boy kid after divorce, leaving any right to visit or interfere of her ex-husband on their child in future. Is it possible by law? If yes then in which section of penal code? Thanks for your reply.
Asked 7 years ago in Family Law
Religion: Hindu
20 Answers
See it is possible by mutual consent of her and her husband they can draw up a mutual divorce agreement in that they can put a condition agree that sole custody of child would be with the wife. If husband deny to give sole custody then it has to be contested.
Its a mutual consent between husband and wife that the exclusive custody of the minor child shall be given to the wife and the husband should not claim custody right. Also the husband should not claim to visit the child at any time. Now, my question is (brother of the wife) which section allows Exclusive Custody without Visitation?
Asked 7 years ago
1. The terms of settlement incorporated in the petition for mutual divorce is purely like a private contract between two consenting adults and the parties are free to include any term which is agreed by both the parties.
2. So as regards the sole custody of the child without even the visitation rights by father can be included in the plaint of MCD provided her husband agrees as well.
3. However do note that even if such terms are included in the Mutual Consent Divorce petition the father can nevertheless file case for visitation or custody of the child under guardian and Wards Act and get the necessary reliefs as well if he manages to prove that the welfare of the child which alone is paramount consideration for the court is at stake under your sister.
4. So take help of a seasoned advocate to draft such petition.
You may not like my answers, but i cannot misguide you.
Moreso,to win sole physical and legal custody, you must show the court that awarding you custody is in the best interests of your child due to factors such as your existing relationship with the child; stability of the home life you provide; inability of the father to meet the child’s needs; father's lack of involvement in the child’s life; father's failure to financially support the child; father's violent behavior toward you or the child; or father's substance abuse issues. In sum, you must demonstrate that not granting you full custody would somehow be harmful to the child. Even if you win sole custody, a court will usually grant the child’s father visitation rights, unless it determines that to do so would be injurious to the child.
In mutual divorces MOU's made have no value and can be terminated at any point in the near future.
See the child is under Hindu minority and guardian ship act and guards and wards act under which there is no specific section regarding your query but under the act it prescribes about the physical custody of child.
So in case if they have mutually agreed then mother shall have the custody.
Dear Sir,
The terms of mutual divorce itself restrain husband the right of visitation once he agrees that permanent custody is given to his wife. It is contractual obligation.
There are the grounds of cruelty if has been shown in divorce petition otherwise this is the sole discretion of the Family Court whether to allow father to visit or not to visit.
Dear client,
Under Guardianship Act, mother can be natural guardian of a minor who has not completed the age of five years. In other cases, it shall be only Father and after his death, Mother.
Sole custody of child can be attain by mutual settlement under MCD terms.
1) As a biological father by default as per Guardian Act, father as custody rights, but due to mother is best caretaker of her own child till the age of 5 years so the custody of child is given to mother. In this way father gets visitation rights twice in a month.
As per section in the law mother won't get custody of child. First rights of child custody is father's.
1. If it is a mutual consent divorce petition then all the terms including visit to the child by the husband will be specified in the said petition or the MOU attached with the said MCD petition.
2. As otherwise, husband has a right to visit his child for which he shall have to avail courtb order.
3. MCD is filed as per HMA or Special Marriage Act and no penal code is involved here.
The law commission report defines guardianship as bundle of rights and powers that an adult has in relation to person and property of minor
2) it states that custody is narrower concept relating to upbringing and day to day care and control of the. minor
3) father is natural guardianof the child and mothercan b e awarded sole custody of your child
4)
Section 6 of The Hindu Minority and Guardianship Act 1956 states that the father is the sole natural guardian of a minor and his/ her property, provided the custody of a minor less than five years of age will ordinarily be with the mother. The mother becomes the natural guardian only “after him”.
5) This was challenged in the Githa Hariharan versus Reserve Bank of India case in the Supreme Court as being violative of constitutional guarantee of gender equality. The court interpreted “after” as not necessarily the death of the father but also absence, total apathy, or inability due to ailment or otherwise.
6) court can with father consent direct that mother shall be sole guardian of child
Consent terms can provide that mother shall have execlisive custody of child and that husband would not have any visitation rights
1. No section of any Act allows Exclusive Custody without Visitation by the husband.
2. On the contrary, all marriage related Acts permi husband his visitation right and he can also pray for custody of the child on the ground of welfare of the child.
3. In the instant case of your sister it will be a mutual consent divorce on agreed terms for which the said terms shall have to be incorporated in the MCD petition which shall be binding on both the parties including her husband.
Since, the divorce is by mutual consent the couple have to come to an agreement as of who will hold the custody of the child .
The visitation rights of a parent is a right recognized by the courts and the law and it cannot be swept away unless some compelling circumstances are shown to the court like a abusive parent or a parent who does not care for his child or has abandoned him in the past.
If these facts do not exist then it is very difficult for the court to order the parent not to visit his or her child as this would amount to cruelty.
Regards
No section of IPC is required. If the parties have decided that the father will not avail access to the son, record a term to that effect in the Consent terms while filing the Petition for divorce by Mutual consent. Be warned, however, that all orders pertaining to children are temporary in nature and can be challenged at any point of time.
Section 26 of Hindu Marriage Act defines the custody of the child in case of mutual consent divorce petition under section 13b of the Hindu Marriage Act if the motion has been passed and agreed between the parties that the one party will have the full custody of the child without any visitation right then the court may allow sach custody of the child to the party
You can pray for the same but generally visitation rights are granted by court.
You should understand that he also has equal rights in the child.
She can impose that as a condition for mutual consent divorce.
If he is not agreeing for that then she can withdraw her consent and let him file contested divorce as well as for child custody separately.
There's no provision in law for your request.
As per law he is entitled for joint custody or visitation rights.
His rights cannot be deprived.
It is a mutually agreed condition only and not by any provision of law.
Hence you may think about it judiciously.