• Child custody question

My husband and I are heading for divorce. But we have a 1 year old child, whose custody we both want. I left my husband's house (in Kerala) 3 months ago and brought my child with me to my parents' place (Shimla, HP). 

1. If he files a custody case, can he file a case in Chennai or will he have to file it in HP as the child is with me in HP?

2. If he files a custody case in Kerala, can I get it shifted to HP? If yes, what is the procedure for that and how long will it take?

3. With the custody issue unresolved, can we initiate a mutual consent divorce simultaneously, if we agree on all the other terms of separation? 

4. Suppose I get my child's custody now. Is there a chance of my son's custody being given to my husband once my son is five years old (or older)?

5. Hypothetically speaking, do I stand a chance of losing my son's custody if I get married again at some time in the future?

6. Hypothetically speaking, if (after divorce) my husband remarries, would that affect the child custody case in any way? Do I stand a chance of losing my son's custody if my husband remarries?
Asked 1 year ago in Family Law from Shimla, Himachal Pradesh
Religion: Hindu
1. Custody suit lies only where where the child is presently residing i.e. Shimla.
2. The court will return the case to be filed in Shimla.
3. Yes and keep the custody issue open if it remains unresolved.
4. Custody of child is hardly changed. So rest assured.
5. I find no such chance.
6. Re-marriage in itself has no bearing on the merit of the custody suit.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
1) your husband will have to file child custody case in HP 

2) you can object to jurisdiction of courts at chennai 

3) your MCD should contain a clause  as to custody of child too 

4) welfare of child is paramount consideration . Court can award joint custody to both parents 

5) your remarriage will not affect your child custody 

6) husband remarriage would not affect your child  custody
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1. If he files a custody case, can he file a case in Chennai or will he have to file it in HP as the child is with me in HP?

A child custody case can be filed only n the place where the child is currently residing.



2. If he files a custody case in Kerala, can I get it shifted to HP? If yes, what is the procedure for that and how long will it take?

It will not be taken on file, a case for child custody at Kerala,if the child is residing at HP, is not maintainable.





3. With the custody issue unresolved, can we initiate a mutual consent divorce simultaneously, if we agree on all the other terms of separation? 

Yes, 




4. Suppose I get my child's custody now. Is there a chance of my son's custody being given to my husband once my son is five years old (or older)?

It depends on the changed situation at that stage 




5. Hypothetically speaking, do I stand a chance of losing my son's custody if I get married again at some time in the future?
Chances are 50-50, so take precautions accordingly.




6. Hypothetically speaking, if (after divorce) my husband remarries, would that affect the child custody case in any way? Do I stand a chance of losing my son's custody if my husband remarries?
Depends on the situation.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. If you file for child custody in HP he will have to defend the case in HP unless it is transferred to Kerala.

2. You can apply for transfer to HP if he files it in Kerala. The courts mostly lean in favour of women in so far as adjudicating transfer petitions is concerned.

3. Failure to reach an agreement on the issue of child custody does not restrain you from filing for mutual divorce.

4. Once the custody is granted to you it cannot be revoked subsequently.

5. Remarrying does not have a bearing on the issue of child custody if it has been settled by the decision of court.

Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under:

1. If he files a custody case, can he file a case in Chennai or will he have to file it in HP as the child is with me in HP?
Opinion: As per section 9 of Guardian & Wards act the jurisdiction of the court is where the Child is ordinary residing, hence he have to file the case before HP until and unless he satisfy the court that the ordinary residence of the child is with him.

2. If he files a custody case in Kerala, can I get it shifted to HP? If yes, what is the procedure for that and how long will it take?
Opinion: if he file child custody case anywhere in India except HP then you may file a transfer petition before Supreme Court and the SC may transfer the matter. it may be take one month time or more then which is depend on the listing.

3. With the custody issue unresolved, can we initiate a mutual consent divorce simultaneously, if we agree on all the other terms of separation? 
Opinion: yes, it can be.

4. Suppose I get my child's custody now. Is there a chance of my son's custody being given to my husband once my son is five years old (or older)?
Opinion: Not a easy task, the court will see the welfare of child, if court think that the welfare of child is with him then only the court hand over the custody otherwise not.

5. Hypothetically speaking, do I stand a chance of losing my son's custody if I get married again at some time in the future?
Opinion: It may be possible if you remarried.

6. Hypothetically speaking, if (after divorce) my husband remarries, would that affect the child custody case in any way? Do I stand a chance of losing my son's custody if my husband remarries?
Opinion: No, if husband remarry then the chance of custody of child is in your favour.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Hi, your husband may file a petition under Guardian and wards  Act for custody of child but under normal circumstances court will not hand over custody to the father and he will get the right of visitation.

2. He may file a petition for custody in the Kerala itself and once you receive the notice then file a Transfer Petition before the Supreme Court to transfer the matter to your place.

3. Whether your husband remarry or not he is always having right to visit the child.

4. The normally  while granting the custody of the child court will take into consider the welfare of the child and if you prove before the court that in your custody child live happily then court will grant custody to you. 
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
First of all one year old child's custody will not be allowed to its father while mother is able to take care of it.
generally up to five years children are allowed under the custody of their mother , but the mother has better chance to get the custody of the child after 5 years as well.
if your husband files for custody he will have to file it where the child presently is.

If he files it in Kerala you should file an application  in Supreme Court to transfer the case to HP, which will be allowed as you are working and staying with your child.
You should get married  after settling the issue of custody. the same issue is applicable to him as well if he remarries you can file the application
the best option is to go ahead with a mutual consent divorce settling the issue between you both.
Whichever way for the coming four years you have the better chance to get the custody and you should fight for it. Your husband will get  the access to meet the child.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0

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