• Child custody

Dear Sir,
I request you to kindly go through the following lines a bit carefully and bless me with the most appropriate answer.
I have filed a civil case of divorce against my wife on 04.04.2015 and a very first court date is 07.05.2015. she is having my child with her and i/ my family members are eager to get the child custody. I wish to file the custody petition to the court on the points that:(1) Since birth, my child is feeding on market milk (Lactogen) only and she is enable enough to feed the baby with her breast milk, i have undergone for medical measure also but it did not work and for it i have the medical prescription also. (2). She & her family sides is almost poor and are living their life in hand to mouth condition. (3) From the very knowledge of mine that non of her family member is qualified beyond 10th or even 8th class, all male are working in a garage on the roadside,at govt. place and it has been removed by the local municipality many times. whereas  as a father i am enough qualified and financially sound to present my child with a very dynamic career.
and apart from all In the view of supreme court of India both male & female are supposed to get the same position in the society and father is the very natural guardian of a child. And if she is unable enough to feed the breast milk then i hope it does not make any difference that a child remain with father/ mother,depending upon ones background.
So, kindly suggest me your view, whether it will be prudent to file the petition with these points?
Asked 1 year ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) welfare of child is paramount consideration

2) custody of minor children is generally awarded to mother 


3) merely because mother is unable to feed child breast milk is no grpund for father to get child custody 

4) even if her family is poor does not mean father should be awarded custody 

5) father can pay maintenance for the upbringing of the child 
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
1. You have not mentioned as to what is the nage of your child,

2. Mother is the natural guardian of a child upto 5 years of age and it is not connected to breast feeding,

3. If you mention in your child custody  petition that your wife's side can not feed your child being too poor and that you are financiall affluent, then it can be used by them in claming maintenance of higher amount from you to maintain your wife and child as per your standard of living, 

4. If he has crossed 5 years of age, file a child custody case praying for your child's custody for the welfare of your child.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Hi, as per section 17 of the Hindu minority and guardianship act the welfare of the child is the paramount consideration  and if you able to prove the welfare of the child in your custody then court will handed over the custody to you but before passing the order child age and other factors also considered by the court.  
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
Yes, the points stated above surely lies in your favour. 
It is pertinent to mention while awarding custody of child, Court also looks into paramount interest of the child . Further there has been various judgement of Supreme Court wherein custody of child has been given to father.
So we suggest you to file the petition , thereby  categorically  elaborating the above mentioned facts.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
The facts you have mentioned herein are good grounds that the custody of the child may be handed over to you.
File a suit for custody of the child under Guardian and Wards Act and pay for the custody of the child on the aforesaid ground.
In the divorce suit also you can apply for visitation of the child but the court can not grant custody of the child.
Feel free to get in touch if you need my assistance in this aspect.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Since welfare of the child is the paramount condition to see to which parent the custody of the child is to be granted so it is advisable that you file a petition for custody of the child. The grounds which you have mentioned here are required to be proved along with a statement as to who is the female in your family who can take care of the child in your absence like her own mother. Please consider only because the mother is not able to feed the child on medical grounds, it would not be a ground to grant you custody however considering the financial condition, you may succeed. 
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. You stand a good chance to get the custody of your child. The financial disparity between you and her provides you a good foundation to build the superstructure on.

2. In child custody cases the delay in filing the case impairs the legal claim. So file the case immediately if you wish to get the custody. 

3. One should never prejudge the success or failure in a legal proceeding. File the case and let the court decide. 
Ashish Davessar
Advocate, Jaipur
18266 Answers
450 Consultations
5.0 on 5.0
Hi, as the child only 17months young so normally custody will be handed over to only mother.

2. You can allow to visitation rights but if you are unable to go to her parents house then fix any public place for visitation rights.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) your child is only 17 months old ,your chances of obtaining custody are bleak 

2) In case your wife remarries make an application for child custody 

3) although in many cases courts have awarded mother child custody even after her remarriage 
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
For the time being you can file application for visitation of the child in the divorce suit itself,
Wait for custody till the child attains at least 5 years age.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. Engage a lawyer and file it immediately if you want custody. The time is running out thick and fast. 

2. She cannot remarry unless she divorces you.
Ashish Davessar
Advocate, Jaipur
18266 Answers
450 Consultations
5.0 on 5.0
 the Supreme Court of India has held that a divorced mother can be granted custody of her minor child even if she remarries

In a landmark judgment for women and children's rights, the Supreme Court of India has ruled that a divorced woman is entitled to custody of her children even if she remarries, notwithstanding the fact that the father is the natural guardian under Hindu law.

The court ruled that the welfare of minor children was of paramount importance and that the child's wishes should be taken into consideration when deciding custody 
, a two-judge Supreme Court bench of Justices A R Lakshmanan and Altamas Kabir reversed a Kerala High Court verdict and restored the order of the family court, which had allowed the mother custody of her child.

The Supreme Court said: "The remarriage of the mother cannot be taken as a ground for not granting custody of the child to the mother. The paramount consideration should be given to the welfare of the child. It also has to be seen whether in view of his other commitments, the father is in a position to give personal attention to the child's overall development."

"The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after divorce is no ground for depriving her the parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child... if the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage, involving a mother per se, will operate adversely to a claim of a mother for the custody of her minor child."
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
1. There is hardly any chance of your getting child custody now since your child is just 17 months old,

2. Not only for breast feeding, a child of 17 months old needs his/her mother for all purposes,

3. You shall have to wait till your child attains 5 years of age to  seek his/her custody for his/her welfare,

4. If visitation at your inlaws place is not possible for some acceptable reason then you can seek brinnging the child to the police station or visitation at your inlaws place with police protection.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. You can file an application before the Court hearing your divorce petition,

2. All what you have desired can be prayed in the said application,

3. After hearing both the sides, the Court will pass appropriate order,

4. It is usual for the Court to pass visitation order for visiting the kid atleast once a week in police station ( to avoid violence from either side),

5. File the petition appropriately giving tress on the welfare of the child,

6. feeding te child without his/her motrher's consent may not be permitted.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1) you can make application for visitation rights before family court wherein your divorce case is pending 

2) your wife will be granted time to file her reply 

3) court will pass reasoned order on your application after hearing both parties 


4) court may grant you visitation rights on weekends and holidays 

5) you can request court that visitation rights be granted at public place like gardens or malls

6) you can give your child gifts on his birthday and other occasions if you so desire 
Ajay Sethi
Advocate, Mumbai
23401 Answers
1230 Consultations
5.0 on 5.0
1. Divorce case has no correlation with the claim for child custody. Both the cases can proceed simultaneously and without any bearing on the other.

2. The grandmother and other family members of the child will have no legally enforceable claim to the custody or visitation. The frequency will be decided by the court. 
Ashish Davessar
Advocate, Jaipur
18266 Answers
450 Consultations
5.0 on 5.0

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