I’m 40 years old divorced man with mutual consent on 25/05/2018, was married for 11 years. We have a >10 years old girl child. In our petition, we both had agreed for my visitation rights one day in a week and that my ex will not hold the request unreasonably. In the decree order passed, it is mentioned, that ‘The petition is allowed’ and other two points of my contribution and permanent custody with my ex are mentioned clearly but nothing is mentioned about my visitation rights, though the separate undertakings furnished by us and the main petition contain it. So far, I had never defaulted in making my payments on time except last month when my ex and her mother unilaterally took the decision without approaching any court to disallow my visitation rights to my child for past one month on the ground, that she is deteriorating in studies and that she gets tired and that I made her travel in the local train once so it was unsafe for her. After this incidence, I have not made the payment for the current month, which was supposed to be done by 10th. Very pertinent to note, that my ex has a touring job and sometimes she goes out of the country as well. She has otherwise also a very hectic job. She stays with her old parents and she is fully dependent on them for the upbringing of our daughter. Her parents do not keep well as well and her mother is handicapped in one leg. My ex can hardly devote any time to my daughter and now depriving me also of the same. I work from home and in a better position to take care of my child, though I earn less than my ex. I’m soon going to be married to a divorced lady, who also has a 5 years old daughter. Currently, we stay together. Her mother also stays with us. She has joint custody with her ex. We have all the facilities at our home to take care of the child and my daughter gels very well with them. However, the flat we live in currently, is in her and her mother’s name. My daughter has expressed her wish to stay with me on multiple occasions. And out of depression and mental harassment, she even disclosed that she wants to commit suicide by jumping out of the building. This was very concerning to me and I took her to a psychologist, who also confirmed that she is mentally harassed and needs to be taken care well. My ex’s parents do take care of her but they have their own ways by keeping the child always locked in the house, not letting her play outside for her safety and other practical issues as they live at a very far secluded place and otherwise also, my ex’s mother has all the symptoms of OCD. My ex and her mother continuously force my daughter to say no to meeting with me. What are my chances of winning the custody battle? What are the interim relief, I would get with respect to my visitation rights and well being of my daughter? Can I take the child with me as per her wish for her safety and file the case as she might take any unwanted step out of mental stress?
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1) Whatsoever you have narrated above can mentioned in the court and you wife and her mother is unable to take care of your daughter, due to this you want a custody of your child and for that court may cross check with girl as a evidence with whom the girl wants to live.
2) There are 90% chance to custody in your favor as what you have narrated above and her mother is travelling most of the time and your MIL lock your daughter and never ever had free environment in the house.
Dear Sir,
Custody rights of Indian parents after divorce
Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Divorce and custody battles can become a quagmire and the innocent child gets caught up in the legal and psychological warfare between both parents.
Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.
After the dissolution of a marriage, custody of a child can be given as: Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.
Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.
Third Party Custody: Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.
The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.
Under secular law as well as Hindu law
Helpful information: The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.
The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.
The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.
The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.
The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.
The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.
Other interesting rulings
A Supreme Court bench headed by Justice Vikramjit Sen had ruled that an unwed mother does not have to take consent from the biological father of the child, or reveal his identity for sole guardianship of the child.
The Delhi High Court has ruled that using the mother’s name is sufficient for a child to apply for a passport when the child is being brought up by a single mother without any involvement from the father.
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.
1. The welfare of the child alone is consideration for her custody and in the present circumstances her welfare is not at all safe with her mother.
2. So you can file a suit for custody of the child and once you prove these allegations you have a fair chance to get back her custody.
3. In the custody suit it is little consideration for the court on what the parents had mutually agreed at the time of mutual divorce.
4. You can also start keeping the child with you and then file a suit for her custody.
You can contest your case is good on merits the court can appreciate same.
Further, you will get the visitation right as interim relief in the same.
She if she agrees then you can take child with you as per her wish
as per MCD decree you have only visitation rights of once a week
2) if wife denies you visitation rights court would award you visitation rights
3) you can take out contempt of court proceedings if wife denies you visitation rights
4) chances of you being awarded sole custody of child are bleak as your daughter is only10 years old
You have an option to file execution and contempt petition of the mutual divorce decree order. You can claim your rights before the court and write all your griviences whatever you are facing in details.
Custody is generally given to mother but you can oppose the same. You will definitely get visitation rights in the same
You have good chances of winning the battle of CUSTODY, though you have vanished your custody rights in divorce petition but, yes, you can file suit to get her custody in the changed circumstances and for the welfare and good upbringing of your daughter, who is presently under mental stress due to ill-treatment of your ex.
don't take the child with you, rather, make such circumstances, she (daughter) make a complaint on child helpline and escaped from there and expressed her willingness to stay with you,
The reasons what you have stated here are to be enumerated and drafted in a convincing manner in your petition as well as in your chief evidence in your child custody case along with the documentary proofs to support your pleadings.
Thus you can convince the court the importance of the child welfare and its future which is paramount. If you are succeeding in it then you have chances for success.
In the meantime you can ask for interim relief for visitation rights also.
It is our child hence you can forcibly take her out of her mother's house, let she file a complaint with the police, they may not be able to do anything on it since you are the biological father of the child.
Thank you all for your valuable advices. I’ve filed a custody petition and interim relief for establishing my visitation rights. But my ex and her parents have completely stopped my access to my daughter, not even through phone. My lawyer says that the notice would be sent only in the month of June as May is a holiday month for family courts. It’s alre been two months, I haven’t seen my daughter, can I approach police to intervene and make me meet her at periodic intervals? Will that have any negative implications on my case? Would videos and audio recordings of my daughter’s statements matter in the court? My ex abusing me and threatening my daughter not to meet me over phone is also recorded, will it matter if she denies the allegations in the court?
1) police would not intervene as your custody petition is pending in court
2) you can rely upon audio and video recordings to prove daughter wants to stay with you
Dear Sir,
The following FAQ's will help you:
CHILD CUSTODY DISOBEDIENCE
What immediately i should do now to make her obey the orders?
Ans: File execution with police help.
Can i file execution in the same FC and can i seek police intervention in the petition to make her obey the orders?
Ans: Yes, it has every powers.
Do i have to wait for execution filing, until she appeals in HC or can i do it without waiting for any of her appeal?
Ans: If you allow her any more time she may get a stay order from High Court. Enough is Enough
When i should file contempt of court and what will be the best strategy to make to see my kid soon.
Ans: It is only give you right to file execution and not contempt but as she is deliberately disobeyed so you may also file contempt before the High Court.
You can only compel them to make your meet once you get visitation charges order from court
See police cannot interfere if the issue pending before the court and it is civil matter. Yes the video and recording of daughter or her physical statement before the court can help. See even if she denies the court can make out from her statement recorded and can pass such order.
The police cannot intervene in this situation.
The family court vacation is not started yet, hence you may file an emergent petition even now seeking the relief and also against her for contempt of court for not allowing you to meet your child despite court order, provided the court has passed any order for visitation rights as an interim relief.