• Custody for my 2 years old son

I have been married for 4 years and my son is 2 years 3 months, my husband and me are recently separated and he is accusing me to have extra maritial affair he told me to leave his house and he is not ready to give me my son
What shall i do in this matter
Asked 1 year ago in Family Law
Religion: Hindu

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20 Answers

So have you left his house?

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1358 Answers
5 Consultations

4.4 on 5.0

Your son is only 2 years old and cannot be forced to leave your son in husband custody 

 

2) you can file DV case seek protection order, right to stay in matrimonial home, maintenance from husband, custody of your child , compensation for mental torture undergone by you 

 

3) you can file police complaint against husband if he is forcing you to leave your matrimonial house 

 

4) also file petition for RCR and seek custody of your child 

Ajay Sethi
Advocate, Mumbai
79718 Answers
4806 Consultations

5.0 on 5.0

You have to file a petition before the family court for the custody of the child on the ground primarily that age of child is below 5 years and as per law also child should be with mother for welfare.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
115 Consultations

5.0 on 5.0

Return to your matrimonial home 

 

2) refuse to leave without your son 

 

3) call police helpline for assistance if your husband refuses to permit you to take your child 

 

4) you can complain to national commission of women against husband and in laws 

Ajay Sethi
Advocate, Mumbai
79718 Answers
4806 Consultations

5.0 on 5.0

  1. Madam, there are two aspects of this--- a) the status and future of your matrimonial relationship with your husband and b) custody and guardianship of your child. 
  2. Whether your marriage can be saved or not, can be decided upon only after exhaustive consultation with you. For that you will have to visit me. After consultation only can I advice, which matrimonial remedy you must seek in family Court; viz restitution of conjugal rights, divorce, or judicial separation. In the petition for matrimonial remedies itself, we will seek custody and guardianship of your child. The grounds on which we seek custody and guardianship of your child will be decided and suggested to you after consultation session. 
  3. So do pay me a visit.

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1358 Answers
5 Consultations

4.4 on 5.0

See you can file petition and can pray for interim custody pending the main case the court may allow same though it will take some time.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
115 Consultations

5.0 on 5.0

Dear Madam,

As per law if the child's age is less than 5 years, the mother can claim for physical custody and father can have a visitation rights. But after the child has crossed the age of 5 years, the physical custody and up bring of the child will be considered by the court. So, if the child is in your husband’s custody then you can file a case under Guardian and Wards Act seeking custody of the child if your husband denies you for the same.
A parent can claim the custody of the child under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act. 
Section 17 in The Guardians and Wards Act, 1890 is mentioned below for your understanding:
Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will.
In most of the cases the Visitation Rights are awarded by the court to the parent to visit the child. 
But in some cases the court can decline the visitation rights as well if the court can be reasonably convinced that visiting the child by the other parent will have any ill effects to the well being and growth of the child.

 

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
27 Consultations

4.8 on 5.0

1. It was your mistake by leaving the home without the child.

2. You could have very well left the house along with the child and then your husband would have posted this query for further legal remedy.

3. Now you have the option of filing a custody suit  in which you will have to place a very strong case including getting the consent of your child to have his custody. Else you will have to remain satisfied with visitation rights of the child.

Devajyoti Barman
Advocate, Kolkata
21787 Answers
318 Consultations

5.0 on 5.0

Up to 5 years of age, mother is only entitle to custody of child and than later too. Do he have any proof of adultery or mere allegations ?

Or no proof, at least you can file police complaint of child kidnap and can recover child custody.

Yogendra Singh Rajawat
Advocate, Jaipur
21407 Answers
31 Consultations

4.4 on 5.0

Hi

You have to file petition for custody of child before concerned court, coupled with an interim application for visitation rights.

Good Luck.

S Srinivasa Prasad
Advocate, Hyderabad
2864 Answers
9 Consultations

5.0 on 5.0

You need to file custody petition before family court. Court will decide the same. He needs to prove that you had extramarital affair and your influence will affect the child

Prashant Nayak
Advocate, Mumbai
22633 Answers
49 Consultations

4.4 on 5.0

If you want the custody of your child, go and get the child. Do not go to the Court first and foremost to get custody as you wont get any prompt relief there.  Rather you will be stuck and will be tied by the procedure and the laws. Go and pick up the child directly and then file a Petition to be appointed as the guardian of the child, in which you may also seek an injunction to refrain your husband from removing the child from your custody. 

The custody of the child should be with you and not subject to any understanding that may be reached.  The longer you wait to get your child back may go against you and you may as well lose the custody altogether. 

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

legally mother is entitled to take care of baby and mother is the first guardian. You will have the custody of your baby as he is only two years and only mother can take care of child at this tender age and if any case is filed for custody you have to prove that you are the best care taker of your child with all amenities for his future.

Mohammed Mujeeb
Advocate, Hyderabad
18986 Answers
13 Consultations

4.5 on 5.0

As per law if the child's age is less than 5 years, the mother can claim for physical custody and father can have a visitation rights. 

Mohammed Mujeeb
Advocate, Hyderabad
18986 Answers
13 Consultations

4.5 on 5.0

1. You shall have to decide whether you want to continue having the matrimonial relationship with your husband or terminate it.

 

2. If you want to continue then join him at his house and if he resists, lodge police complaint since you have the right to stay with your husband at his premises.

 

3. If you waqnt to terminate the relationship, file a divorce suit on the ground of cruelty and also file a petition claiming custody of your child.

 

4. You will be considered as the natural guardian of your child who is less than 5 yeras old.

Krishna Kishore Ganguly
Advocate, Kolkata
24902 Answers
707 Consultations

5.0 on 5.0

1. You shall have to file a petition seeking custody of your child which you are expected to get as per law.

 

2. You can expect the favourable order within 3 to 4 hewarings if you engage an experienced lawyer.

Krishna Kishore Ganguly
Advocate, Kolkata
24902 Answers
707 Consultations

5.0 on 5.0

You should lodge FIR against him Under section 498A.

You should hire an advocate and file a criminal case of Domestic Violence against your husband from which you can claim custody of your child, maintenance, compensation and residence orders. 

If you want custody at the earliest then you should go with your family members get the child forcefully and then file case of domestic violence against your husband.

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

The child shall remain in the custody of the mother till it attains 5 years of age  until there is an extra ordinary situation by which the child is in danger, hence you may file a child custody case and get interim relief of interim custody first.

 

T Kalaiselvan
Advocate, Vellore
69749 Answers
950 Consultations

5.0 on 5.0

If you want your child custody now then you may have to file a child custody case or barge into his c=house with some local thugs and retrieve your child even if you may have to use violence on this because if he files a police case also it will not be maintainable.

T Kalaiselvan
Advocate, Vellore
69749 Answers
950 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear tryst you have already left the home and now want your child back as he don’t allow you to take him at the time of leaving his house.
  2. Yes, this is your right and he can’t deny the same. 
  3. You should file an application before the court of law for the custody of he child.
  4. Once you file it then I believe that court would grant you the custody as child is small and allegations are baseless and he should have proved it to have the child custody continuously with him.
  5. Also file an application under section 125 for maintenance of wish to for yourself as well as for child.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

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