• Child's guardian

Dear Experts,

The Wife passed away while the divorce & RCR cases are going on. The male child was in her custody for 5 years. The child can identify his father but he has absolutely no bonding with him all these years.

(Pls note that 8K per month has been fixed as the maintenance (u/s Crpc 125) for the child, which I'm paying for the last 2 years.)

As the wife has passed away:

1) What are the necessary legal steps the father has to take next.
2. Regarding Child custody. Inlaws are keen to have custody of the child. If the father agrees to leave the child with inlaws, what amount would be fixed as compensation? Is it 1/3 rd thumb rule as in MC case?
3) What else are the responsibilities of the father at this stage and future?
Asked 1 month ago in Family Law
Religion: Hindu

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25 Answers

Now father can claim his custody from court. You don't need to pay the 8k now as you are taking care of the child. If the in-laws are taking care and you don't need custody the child support can be fixed as one time lump sum for his education and well being. Otherwise monthly amount can be mutually fixed between in-laws and you. If there is no mutual agreement then you can approach court and as per its direction you can do the needful

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

1. File a suit for custody of the child under Guardian and Wards Act to get back the child. 

2. It would be 1/4th of your income. 

3. Father should take effort to get back the child than thinking about legal obligations. 

Devajyoti Barman
Advocate, Kolkata
21680 Answers
311 Consultations

5.0 on 5.0

If father want than court can grant custody to father. Otherwise in-laws are ready to take custody of sons than reduce the maintenance charges accordingly.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

The child is yours and you should keep it. The cases are over as the complainant has died. If the in laws are ready then let them pay. You should pay as per the child's requirements.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

Father and mother are natural Guardian of children and their rights over Custody of children are paramount over other relatives and in-laws. The father has preemptive right over the child after the demise of mother of child.

You may apply for the Custody of child before the Court of law under Guardian and Wards Act. 

The father has to bear all necessary expenses of child in the custody of in-laws.

The father has to maintain the child and do everything for the welfare of child to his future life as a great citizen. 

 

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

If you have no objections for in laws taking child custody then continue to pay maintenance awarded by court for child 

 

2) you are responsible for maintenance of child till he completes his studies and starts working 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

1. if you want the custody of the child, you can claim by way of filing a custody case,

2. amount of maintenance depends upon various factors and the court will decide, (NO THUMB RULE)

3. your responsibility is to provide him the due affection what he deserves/entitled from his father in the absence of mother,

 

 

Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

Yes they can apply for enhancement for maintenance if child expenses increase 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

You can't stop them applying before the Court.

You have to show the court that you are capable of taking good care and welfare of the child.

 Please apply to the Court, before the same same Judge who is trying Divorce and RCR , Under Section 6 of Hindu Minority and Guardianship Act 1956 claiming your preemptive right of the custody of child and Court may consider your claim of custody of child better and more  over the claim of your in-laws.

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

Till your son becomes 18 years old till that time you have to pay him maintenance.

Ganesh Kadam
Advocate, Pune
11668 Answers
109 Consultations

4.9 on 5.0

Yes they can still apply for enhancement of maintenance if there is change in circumstances 

Ajay Sethi
Advocate, Mumbai
79294 Answers
4742 Consultations

5.0 on 5.0

We did not understand your question, Please clarify more .

Ramesh Pandey
Advocate, Mumbai
2538 Answers
8 Consultations

5.0 on 5.0

1. an application unde section 127 for alteration of maintenance can be filed,

 

Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

 2. avoid making lump sum payment

Suneel Moudgil
Advocate, Panipat
2330 Answers
3 Consultations

4.7 on 5.0

1. If the father would like to take custody of the child,  he can very well take the child with him, since he is the biological father there's no restriction for him to take custody and care of his child. 

2. If the father of the child is willing to leave his child with the maternal grandfather's custody,  it is his decision. 

The court has already passed maintenance hence there will be no fresh order to be passed in this regard until they approach once again for enhancement. 

The court will decide the quantum on merits of the case. 

3. The father is responsible and duty bound to take care of all the needs of his minor child including education,  food,  shelter,  clothing and medical expenses. 

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

If the child custody is given legally to them,  then they can file a petition seeking enhancement of the maintenance amount. 

 

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

You can arrange for one time settlement on the conditions that they shall not ask for anything more in future. 

However please be aware that by paying one time settlement you will not be absolved from your duties as biological father in future nor his rights as your son shall be extinguished. 

 

T Kalaiselvan
Advocate, Vellore
69328 Answers
929 Consultations

5.0 on 5.0

Withdraw all other cases and file a permanent custody of your child 

Rahul Jatain
Advocate, Rohtak
5364 Answers
4 Consultations

4.8 on 5.0

1. File a case to get custody of the child.

Rest will follow automatic. 

Regards 

G.Rajaganapathy

High Court of Madras

Rajaganapathy Ganesan
Advocate, Chennai
1804 Answers
8 Consultations

4.9 on 5.0

1. Father should move an application before the court for informing the same , and to close the cases filed by wife.

2. Yes, otherwise father can claim the custody of the child 

3. Father will have to pay maintained till the age of 18 , if the boy child . 

- Further , if the custody of child is with the in-laws , then they can claim the expenses for education of the child . 

Mohammed Shahzad
Advocate, Delhi
5531 Answers
51 Consultations

5.0 on 5.0

They can apply enhancement of child support as it's necessary for take care of the child

Prashant Nayak
Advocate, Mumbai
22417 Answers
49 Consultations

4.4 on 5.0

1. Father can take custody of his son as he is natural guardian of child and if parents of your wife object to your custody then you can file petition before court for custody of your child. 

2. If you agree to give up custody then you need to pay maintenance of child as decided by court. 

3. Your in-laws can file suit for alteration of maintenance on future. 

Mohit Kapoor
Advocate, Rohtak
10685 Answers
7 Consultations

5.0 on 5.0

You can file petition for custody of child. 

As a Father you are responsible for child support, in cases where the child stay. 

 

Mohammed Mujeeb
Advocate, Hyderabad
18935 Answers
11 Consultations

4.5 on 5.0

Yes they can if they feel the maintenance is inadequate.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

No they cannot.

Rahul Mishra
Advocate, Lucknow
11560 Answers
20 Consultations

5.0 on 5.0

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