No it will be decided separately on merits and not on your wife side blindly
Child custody case before vs after divorce
I'm a father of a 3y10m old son, who is living with his mother (my wife). I have filed a child custody case in the city where child and wife are residing (in Rajasthan) and in the first hearing the judge got a counselling session done to try to get patch up done b/w me and wife in interest of child. Now my wife is insisting on taking divorce under sec 13B with the condition that custody matter will be decided by the court as per the existing case. I have no interest in remarriage and I want to get custody of my son. But if I agree for 13B divorce, will the custody case judge directly give judgement in favour of wife (as no relationship will be left to patch up)? If yes, can I immediately approach high court for appeal? If I don't agree for divorce and when my son becomes 5 year old, will the chances of lower court giving custody in my favour increase?
Asked 4 years ago in Family Law
Religion: Hindu
10 Answers
Under Section 6 of Hindu Minority and Guardianship Act, 1956, custody of child below five years will be with mother with visiting rights to father and custody after five years of age will be father with visiting rights to mother. This Rule is applicable during divorce proceeding and after divorce. But you are taking divorce by consent, you have to work out terms of custody, maintenance of child, alimony, maintenance for wife and child between you and her. Under Section 13B Court will not decide any dispute. Before approaching Court it is for wife and husband to settle everything.
The child custody case has no connection with the divorce case.
The child custody case will be decided by the court concerned only on merits of the case and not ion the decision of any other irrelevant case.
As far as child custody case is concerned you may have to rely on the grounds which you have put forth in the child custody case and not on the basis of the change in circumstances
In case of divorce by mutual consent consent terms should provide for custody of child
2) don’t agree to wife offer that court decide custody of child
3)since your child is less than 5 years old you would not be awarded custody of your child
4) welfare of child is paramount consideration
Assuming court decides on child custody case in a few months, as my son will be less than 5 years old, my wife may get custody. Then i) do I have to wait until he turns 5 yr old and then again file a new case, or ii) I have to file in high court after he turns 5 yr old, or iii) I can file appeal immediately in high court
Asked 4 years ago
You can file appeal against impugned order before high court
You can seek comprehensive order from Court with respect to custody after son crosses five years. Court can pass such order.
If you are aggrieved by the decision of trial court you may prefer an appeal against the aggrieved judgment.
The law is not always in favor of mother, under special circumstances the court may grant child custody to the father too even if the child is less than 5 years of age.
No the custody will be with her. But you will get visitation rights. You can also claim for joint custody of child or else can wait till she breaches any conditions or get negligent on welfare of the child then you can claim custody again on that ground
- Custody of child case and a divorce is two different and cannot be decided in the matter of divorce.
- Further , under Hindu law, A mother usually gets custody of the minor child, under the age of five and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.
- Hence, it is not necessary that the custody of said child give to your wife only on the ground of age .
- Under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian.
- Further, if the court awarded the custody to the mother , then legally you have right to approach the High court against that order of the trial court.
Dear client
it is better to file in high court after the child turns 5
Thank you
