What is the age of the child and what do you do??is the mother more responsible of the two?

The child is more attached to whom. Theses are the questions which the court shall take into consideration.

Regards 

welfare of child is paramount consideration 

2) court considers wishes of child in awarding custody of child

Are you earning?

If so why do you expect from your wife?

Regards 

G.Rajaganapathy 

Lawyer 

High Court of Madras 

Your contention should be mother is not fit person to be awarded custody 

2) that her parents are old and cannot take care of child and the child wants to stay with you 

If mother is earning then you can claim the same from mother.  No rule prohibits the sams

Please share further facts of the details and the copies of the petition so that a judgment supporting your case can be given to you. 

regards 

Court would consider wishes of child in awarding custody of child 

Dear Sir,

Yes, you can claim half share of maintenance of child by your wife.

When one spouse is abusive and not fit for the physical or mental reason to take care of the child, the court gives sole custody to that spouse who is caring towards the child.
The parent with the custodial rights will be designated as the primary caretaker and will be in charge of the child’s emotional, medical and educational needs.
The other parent may be required to take care of the expenses, but will not have any way be a part of the child’s life. Anyhow, the court often is sensitive ins such situation and give visiting right to the other parent.

If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians. 

The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.

Then you can demand joint custody.  Physical  custody with you and visitation rights and rotational custody to mother

Since the child is 10 years you need not worry. The child's interest will be taken care. If the child desires to stay with the father, then court will not force otherwise. But being a mother she too will have certain rights, which will be taken care of, like visiting rights.

I guess you need not worry much.

Child wish consider by court, if finds child mentally stable and company of mother not good for her. And in child growth both parents contribution is mandatory, hence, sec 20 application maintainable.

If the mother is employed and earning a handsome salary then the father who is having the custody of the child and not able to sustain the entire expenses of the child can seek maintenance from the mother under the provisions of section 20 of HAMA.

The circumstances what you have described about the mother is a conducive situation for the father to have child custody.

However the father while applying for custody would have mentioned about his financial ability to maintain the child, hence the present application seeking maintenance from mother may backfire if the original application is referred to in this situation, care may be taken

You may proceed with your proposal to file an application seeking maintenance for your child from its mother, let she deny the same in court on her own grounds which can be challenged.

1)  If this is situation than father will get custody of girl child needs to prove in court that from your side in absence of you.  Someone elders are going to take care of your daughter. 

if the mother proves that father is not able to take care of the child and not able to provide with amenities which a mother can then court may pass a order in her favour.. 

In light of the facts as told by you it is highly impossible that the mother will get the custody of the child. 

Regards 

Both the parents are liable to maintain the children.

 CASE NO.:


Appeal (civil) 2462 of 1999

PETITIONER:

PADMJA SHARMA

RESPONDENT:

RATAN LAL SHARMA

DATE OF JUDGMENT: 28/03/2000

BENCH:

D.P. WADHWA & M.B. SHAH

JUDGMENT:

JUDGMENT 2000 (2) SCR 621 The Judgment of the Court was delivered by D.P. WADHWA, J. Appellant, the wife, whose marriage with the respondent has since been dissolved by decree of divorce on the ground of cruelty on the petition filed by her, has filed this appeal not only seeking enhanced maintenance for two minor children of the marriage but also for claiming the same from the date of application filed under Section 26* of the Hindu Marriage Act, 1955 (for short the 'Act) in the Family Court, ________________________________________________________________________ * 26. Custody of children - In any proceeding under this Act, the court may, from time to time, pass such interim orders and, make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, alter the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may, also from time to time revoke suspend or vary any such orders and provisions previously made .

________________________________________________________________________ Jaipur. Appellant is also aggrieved by the order of the courts below not granting her full claim of 'streedhan', litigation expenses, etc. Both the parties are Hindu. Their marriage was solemnized in accordance with Hindu rites on May 2, 1983. First child, a son, was born on January 27, 1984 and the second child, also a son, was born on June 28, 1985. Wife field petition for dissolution of marriage on May 21, 1990. She also prayed therein for return of her 'streedhan', custody and guardi-anship of the children and also for their maintenance. At the same time she also filed an application under Section 125 of Code of Criminal Procedure (Code).

On August 2, 1991, wife filed a petition under Section 26 of the Act in the Family Court claiming maintenance @ Rs. 2575 per month for both the children. In the affidavit supporting the application, however, maintenance was claimed @ Rs. 2,500 per month for both the children. It was pointed out that husband was getting a salary of Rs. 6233.40 per month. Wife also claimed a sum of Rs. 1,585 as admission fee in schools for the children and Rs. 5,000 as litigation expenses.

Family Court by the order dated April 7, 1992 granted maintenance under Section 125 of the Code @ Rs. 250 per month for each child. On April 30, 1992 Family Court awarded a further sum of Rs. 250 per month for each child as interim maintenance under Section 26 of the Act. Family Court also framed issues relating to the custody, guardianship and maintenance of the minor children and also regarding 'streedhan'.

On October 27, 1995 wife filed another application under Section 26 of the Act wherein she drew the attention of the court to her earlier application filed on August 2, 1991. Now she claimed Rs. 2000 per month for each child. She said salary of the husband had since been increased to Rs. 12,225 in August, 1995. On August 26, 1997 yet another application was filed by wife under Section of the Act. Now she wanted maintenance for the elder child @ Rs. 3,500 per month and for the younger child @ Rs. 3,000 per month, it was pointed out that the salary of the husband was Rs. 13,683 per month and thereafter from August, 1997 it was going to be increased to Rs. 14,550 per month.

Family Court by order dated September 13, 1997 consolidated both the proceedings - one under Section 13 of the Act for dissolution of the marriage and the other under Section 26 of the Act. On October 4, 1997 Family Court granted decree of divorce in favour of the wife dissblving the marriage between her and the respondent. Against claim of Rs, 1,80,000 towards 'streedhan' Family Court granted a decree of Rs. 1,00,000 as cost of the articles which prayer was granted in the alternative if the respondent did not return the articles mentioned by wife in her petition. It was also ordered that both the children, till they attain majority, should be in the custody of the mother, the appellant, and maintenance for each of the child was awarded @ Rs. 500 per month from October 4, 1997. A sum of Rs. 1,000 was awarded as cost of the litigation to the wife.

Wife took the matter to the High Court seeking enhanced amount of maintenance of the children and decree for the full amount of Rs. 1,80,000. High Court, by its impugned judgment, enhanced maintenance of the children from Rs. 500 per month to Rs. 1,000 per month effective from the date of the order of the Family Court dated October 4, 1997 and awarded Rs. 500 per month for each child from the date of the application. High Court observed, though in our view not correctly, that "it is an incumbent liability on the part of the father to bear the cost of education and the maintenance express for the two children..........." High Court also observed that the respondent was "admittedly employed in a responsible position in the Reserved Bank of India where his gross pay packet amounts to Rs. 13,000 per month". During the course of hearing we have been told that the husband is employed as a clerk in the Reserve Bank of India while the appellant-wife is a lecturer in a Government college in Rajasthan. High Court rejected the prayer of the wife for enhancement of any amount from Rs. 1,00,000. High Court made certain directions for the husband to meet the children and with that we are not concerned. High Court disposed of the appeal without any order as to costs. Still the wife felt aggrieved and sought leave to appeal to this Court under Article 136 of the Constitution, which we granted. By an interim order passed on February 22, 1999 it was directed by this Court that by way of interim relief maintenance for each of the child be paid @ Rs. 1,500 per month by the respondent-husband.

This Court in an appeal under Article 136 of the Constitution is not going to re-appreciate the evidence led before the Family Court. There is a concurrent finding of award of Rs. 1,00,000 to the wife though in the alternative being the cost of the articles presented at the time of the marriage which we are not going to disturb. As far as costs and special costs are concerned that again is within the discretion of the court and unless some weighty reason is shown to us we again to not think that we should unsettle the payment of award of costs by the Family Court and nor payment of costs by the High Court. Appellant says she has been harassed persistently by the husband in delaying the trial before the Family Court. But then husband also has a grievance that in the Family Court he could not get the services of a lawyer though the wife was represented by her father, who himself is a lawyer and while her father would argue in the court she would remain mute.

Respondent before us has not appeared instead of notice to him. We have heard the agreements of the wife ex-parte. On February 28, 2000 an application was filed by the appellant for placing on record additional documents which are all of the period after filing of this appeal. No notice has been given to the respondent of this application. The purpose of the applica-tion appears to be to further enhance the amount of maintenance taking into account the changed circumstances as the salary of the respondent-husband is stated to have increased by passage of time. Various documents like receipts for payment of school fees, buying of books, school bags, etc. have been filed. We are not inclined to permit this application at this stage. If circumstances have changed for enhancement of maintenance appellant can approach the Family Court again as an order under Section 26 of the Act is never final and decree passed thereunder is always subject to modification.

Maintenance has not been defined in the Act or between the parents whose duty it is to maintain the children. Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Succession Act, 1956 constitute a law in a coded form for the Hindus. Unless there is anything repugnant to the context definition of a particular word could be lifted from any of the four Acts constituting the law to interpret a certain provision. All these Act are to be read in conjunction with one another and interpreted accordingly. We can, therefore, go to Hindu Adoption and Maintenance Act, 1956 (for short the 'Maintenance Act') to understand the meaning of the 'maintenance'. In clause (b) of Section 3 of this Act "maintenance includes (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage" and under clause (c) "minor means a person who has not completed his or her age of eighteen years". Under Section 18 of the Maintenance Act a Hindu wife shall be entitled to be maintained by her husband during her life time. This is of course subject to certain conditions with which we are not concerned.Section 20* provides for maintenance of children and aged parents. Under this Section a Hindu is bound, during his or her life time, to maintain his or her children. A minor child so long as he is minor can claim maintenance from his or her father or mother. Section 20 is, therefore to be contrasted with Section 18. Under this Section it is as much the obligation of the father to maintain a minor child as that of the mother. It is not the law that how affluent mother may be it is the obligation only of the father to maintain the minor.

In the present case both the parents are employed. If we refer to the first application filed under Section 26 of the Act by the wife she mentions that she is getting a salary of Rs. 3,100 per month and husband is getting a salary of Rs. 5,850 per month. She is, therefore, also obliged to contribute in the maintenance of the children. Salaries of both the parents have since increased with the course of time. We believe that in the same proportion, may be perhaps in the case of an employee of Reserve Bank of India at somewhat higher rate. If we take approximate salary of husband is twice as much as that of the wife, they are bound to contribute for maintenance of their children in that proportion. Family Court has already fixed a sum of Rs.. 250 per month for each of the child under Section 125 of the Code. That amount we need not touch.

Considering the overall picture in the present case we are of the view that a sum of Rs. 3,000 per month for each of the child would be sufficient to maintain him, which shall be borne by both the parents in the proportion of 2:1. We, therefore, direct that respondent shall pay a sum of Rs. 2,000 per month for each of the two children aforementioned from October 4, 1997, the date of the order of the Family Court. For the earlier period ___________________________________________________________________________ * 20. Maintenance of children and aged parents. - (I) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

___________________________________________________________________________ (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parents or daughter who is unmarried extends insofar as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation. - In this section "parent" includes a childless stepmother respondent shall pay Rs. 500 per month for each of the child from the date of the application, i.e., August 2, 1991 and @ Rs. 1,000 per month from the date of the second application, which is October 27, 1995 and @ Rs. 1,500 per month form the date of the third application, which is August 26, 1997. These amounts shall be apart from the amount which the respondent has already been paying to the children @ Rs. 250 per month under Section 125 of the Code. Respondent shall be entitled to makes adjustment of the amounts which he has already paid under orders of the Family Court, High Court or the interim order of this Court.

The appeal is thus partly allowed. There shall be no order as to costs as respondent has chosen not to appear.

Dear client 

Yes child is eligible for maintenance from both the parents and you have taken a good step for teaching mother a lesson.

1. As per the information mentioned in the present query, makes it clear that the welfare of the child is with the father.
2. And I would like to tell you that mother can’t even get the visiting rights if she is in adultery.
3. You should move an application to cancel the visiting rights and only mediation meeting will be there.
4. State all reasons including few words from the child also as she doesn’t take good care of her.