1. Since the son is now in physical custody and if there is no evident danger to his wellbeing his custody is unlikely to be handed over to you. However through court you will get an order for interim visitation of the child.

2. The medical condition is a good ground for you to get back but only if it is medically established that his continued custody under his mother in prejudicial to his proper wellbeing.

I'm really sorry you're going through this it’s a tough situation. Here’s to adress your concerns:

1. Custody of your son (5 years old) – You can file for custody or visitation under the Guardian and Wards Act in the family court. Since your child is a minor, courts usually prefer the mother's custody, but your wife's mental health and refusal to take treatment can work in your favour if it's affecting the child's well-being.

2. Her mental health issues – If she's been diagnosed with depression and a personality disorder and is refusing treatment, this can strengthen your case. Courts prioritize the child’s safety and stable environment.

3. Emotional affair and desertion – While not illegal, these can support your claim to show her instability and unwillingness to maintain the marriage or co-parent responsibly.

4. School admission without consent – As a biological and legal guardian, your consent is generally required. If she enrolls the child without informing you, you can object with the school and notify the education department or court.

In short: Approach a family court in Chennai and file for custody or visitation rights immediately. You can also seek temporary custody or restraining orders if the child’s safety is at risk. Her parents’ support can help you in court too.

File petition for RCR seek joint custody of your child 

2) you will not get sole custody of your child 

3) your consent would be necessary to place child in school 

Specific question's Reply are:

1. Child custody case and to prove that you can care your son more than your wife with child welfare, health, wealth and overall 

2. If you have all medical records of your wife which can prove her mental ability then yes it's useful 

3. If she admit in the court then yes it will be useful 

4. Yes she can put because the son is in her custody and she have legally right to give education to your son and it is also important. 

If you need further consultancy then you can contact me. 

Matrimonial/ Child Custody / Divorce Expert! 

Dinesh Kumar Advocate 

Delhi High Court 

Query: Wife has left the matrimonial home with our 5-year-old son and refuses to return. She has mental health issues, a history of emotional infidelity, and now plans to live alone with the child. What are my legal options for child custody and overall legal recourse?

You have strong legal grounds to seek custody or visitation rights under the Guardians and Wards Act, 1890, and to file for judicial intervention given:

• The minor child’s age (5 years),

• The mother's mental health concerns,

• Her unstable living situation,

• Her history of emotional neglect, and

• Her desertion of the matrimonial home without legal justification.

Detailed Legal Position

1. Can You Get Custody of Your Son (Age 5)?

Yes. Under the Guardians and Wards Act, 1890, and Section 6 of the Hindu Minority and Guardianship Act, 1956: 

• The natural guardian of a Hindu minor boy is the father, and after him, the mother.

• However, custody of a child under 5 years is generally given to the mother, unless:

  • The mother is unfit to take care of the child.

  • The child’s welfare is at risk, or

  • The father proves that remaining with the mother is not in the child’s best interest.

In your case, the following points strengthen your claim:

• Your wife’s diagnosed mental health issues and refusal of treatment

• Her instability (leaving her parental home without informing anyone)

• Her plan to live alone with a minor child without support or income

• Her past emotional infidelity impacting her moral and emotional fitness

 You can file a guardianship petition under Section 7 of the Guardians and Wards Act before the Family Court or District Court, seeking:

• Custody of your minor son

• Injunction restraining her from taking unilateral decisions regarding the child

• Interim visitation or temporary custody until final orders

 2. How Does Her Mental Health Affect Custody Case?

While depression or personality disorder alone doesn’t disqualify a parent, refusal to:

• Accept treatment,

• Maintain family support,

• Demonstrate stability,

…can significantly impact the court's decision.

 Courts prioritize the welfare of the child, including:

• Safety

• Emotional and psychological stability

• Access to stable shelter and support system

Your wife’s current behavior may show:

• Neglect of mental health

• Poor judgment and decision-making

• Risk to child’s emotional well-being

You should document:

• Medical diagnosis

• Counseling reports

• Any text messages or evidence showing her refusal to follow medical advice

These will support your claim of her being currently unfit for sole custody.

 3. Does Her Emotional Affair and Desertion Strengthen Your Case?

Yes, to some extent:

• Adultery or emotional affairs are not directly linked to child custody decisions, but they do affect her moral character and credibility.

• Desertion without any legal cause and taking the child with her unilaterally is viewed negatively by courts.

• This can help you file for:

  • Restitution of Conjugal Rights (RCR) under Section 9 of the Hindu Marriage Act (if you wish reconciliation)

  • Divorce under grounds of cruelty, desertion, or mental disorder (Section 13)

But most importantly, it strengthens your guardianship/custody petition, as courts consider the mother’s conduct in determining the best interest of the child.

 4. Can She Admit the Child to School (UKG) Without Your Consent?

Technically, both parents have equal parental rights, especially for a minor child.

Unilateral school admission without your knowledge or consent is not proper, and you can:

• File an injunction petition in court to restrain her from taking such decisions without your involvement

• Serve a legal notice to the school (once known), notifying that a dispute exists and that decisions require both parents' consent

If needed, you can also:

• Request court orders that all education and welfare decisions be made jointly

• Ask for the transfer of the child to a neutral guardian or back to you

Suggested Legal Action Plan

1. File a Guardianship Petition in the Family/District Court for:

   • Full custody OR

   • Shared parenting with visitation rights and oversight

2. File an Interim Application for:

   • Immediate access to your child

   • Restraining her from changing the child’s school or residence without permission

3. File RCR or Divorce Petition (optional depending on future plans)

4. Collect and preserve evidence:

   • Counseling reports

   • Medical certificates

   • Texts/emails about her instability

   • Support from her father and brother (can be witnesses)

5. Consult a family lawyer locally and move swiftly before she creates records to show that you “abandoned” the child.

Final Legal Advice

You have strong grounds to seek legal custody or at least shared custody with protective measures. Her current mental health, behavior, and unilateral decisions can be shown as detrimental to the child’s welfare, which is the most critical factor for the court.

You can also seek court-monitored mediation if reconciliation is still possible.

1. You can file a child custody case by pleading all those relevant issues due to which she may not be capable of taking care of the child properly hence in the interest of the child you want the custody of your child.

2. You can produce documentary evidences about her illness and subsequent attitude to not to follow the medical advise or treatment and take a plea that it will not be proper or in the interest of child to be left with her to be taken care by her under her custody in the given situation.

3. Her emotional affairs or her desertion of matrimonial home is not a proper and strong ground for seeking child custody.

4. If the child is in her custody she can vry well get the child admitted to a school in the interest of child.

This is an incredibly distressing situation, and it's understandable that you're feeling devastated and concerned for your son. Navigating family issues, especially when a child is involved and mental health is a factor, requires careful consideration, breakdown of your legal options and considerations under Indian law:

General Principles of Child Custody in India

The paramount consideration in all child custody matters in India is the welfare of the child. This goes beyond just financial stability and includes their emotional, physical, educational, and moral well-being. Courts will assess which parent can provide a more safe, comfortable, and stable environment for the child to grow up.

Your Specific Questions Answered:

1. What are my legal options to get my son back, considering he is only 5 years old?

Since your son is 5 years old, the legal presumption under the Hindu Minority and Guardianship Act is that custody of a child below 5 years should generally be with the mother. However, your son has just turned 5, which means this presumption weakens significantly. The court will now consider the "welfare of the child" as the primary factor.

Your legal options to seek custody of your son are:

• Filing a Petition for Custody under the Guardians and Wards Act, 1890: This is the primary secular law governing guardianship and custody of minors in India. You can file a petition seeking custody of your son. The court will then evaluate various factors to determine what is in your son's best interest.

• Filing a Divorce Petition (if you decide to pursue divorce): If you decide to file for divorce on grounds like cruelty or desertion, you can concurrently seek interim and permanent custody of your son within the divorce proceedings under the Hindu Marriage Act.

  • Restitution of Conjugal Rights (RCR) under Section 9 of the Hindu Marriage Act: While not directly for custody, you could initially file for RCR, requesting your wife to return to the matrimonial home. If she refuses without reasonable cause, this refusal can strengthen your grounds for divorce (desertion) later, and consequently, your custody claim. However, given her mental health issues and stated animosity, an RCR petition might not be the most effective first step for reconciliation, but it could build your legal case.

2. Given her diagnosis of depression and personality disorder, and her refusal to cooperate with treatment, how does this impact my chances of gaining custody or at least ensuring proper care for my son?

This is a significant factor in your favor, but it's complex:

• Impact on Custody: The court prioritizes the child's welfare. If your wife's mental health conditions (depression and personality disorder) are proven to directly impact her ability to provide proper care, stability, and a safe environment for your son, and she is refusing treatment, this will strongly influence the court's decision regarding custody. You will need to present medical evidence of her diagnosis and her non-cooperation with treatment.

• Ensuring Proper Care: Even if you don't get sole physical custody immediately, the court can impose conditions or order supervised visitation to ensure your son's safety and well-being. The court may also direct her to undergo treatment, and non-compliance could have repercussions on her custody rights.

• Proof is Key: Mere allegations of mental illness are not enough. You will need strong evidence, such as the couples' counselor's report, psychiatrist's diagnosis, and evidence of her refusal to follow treatment. The fact that her father and brother are supporting you and are concerned about her and your son's safety can be crucial corroborating evidence.

• Relocation Risk: Her statement about wanting to live alone in a rented house in her native place with your son, especially given her condition and refusal to heed advice, will likely be viewed as a risk to the child's stability and safety by the court. You should highlight this concern.

3. Does her admitted emotional affair and desertion strengthen my case for custody or any other legal action?

Yes, both desertion and the emotional affair can strengthen your legal case, though their impact on custody directly needs careful explanation:

• Desertion: Her refusal to return to the matrimonial home and her statement of not wanting to live with you constitutes desertion. This is a strong ground for you to seek a divorce.

• Emotional Affair: While adultery is a ground for divorce, recent court rulings in India (e.g., Delhi High Court and Bombay High Court) have stated that an extramarital affair alone cannot be the sole factor to deny a parent custody, unless it can be proven that the affair is "pernicious/detrimental/injurious" to the welfare of the child.

   

  • Your Argument: You can argue that her affair, particularly her continuing it secretly after being confronted, deeply impacted the marital relationship, led to resentment and frequent quarrels, and created an unstable environment in the home, which would have indirectly affected your son. You can also argue that her emotional state and lack of commitment to the family due to the affair make her less capable of providing a stable and emotionally secure environment for your child, especially when combined with her mental health issues and current refusal to cooperate.

  • Trust and Stability: Her actions have severely broken trust and created a volatile home environment. You can argue that this instability, coupled with her current mental health and refusal to be advised, directly impacts your son's welfare.

4. Can she put him in school (UKG) without my consent? What action can be taken against her?

• Generally, No (for major decisions): While the mother is often the primary caregiver, significant decisions about a child's education, especially admission to a new school, typically require the consent of both parents, particularly when they are married and share legal guardianship.

• Impact of Sole Custody/Interim Orders: If you obtain an interim custody order or a prohibitory order from the court, she would be legally barred from admitting him to a new school without your consent or the court's permission.

• Action You Can Take:

  • Communicate: First, try to communicate your disapproval in writing (email/registered post) that you do not consent to his admission in any school without mutual agreement or a court order.

  • Inform the School: You can inform any prospective school that you are the child's father and a natural guardian, and that no admission should be granted without your consent, citing the ongoing marital dispute and your concerns for the child's welfare.

  • Approach the Court: If she proceeds with admission without your consent, or threatens to, you can immediately approach the Family Court and seek an injunction or order restraining her from enrolling the child in a new school without your consent or court approval. You can argue that such a unilateral decision would be detrimental to the child's stability and education, especially given the current circumstances. The court can also pass orders regarding which school the child should attend.

Recommended Steps:

1. Consult a Family Lawyer Immediately: This is the most crucial step. A lawyer will assess your specific situation, gather necessary evidence, and advise you on the best legal strategy.

2. Gather Evidence:

   • Medical reports/diagnosis of your wife's depression and personality disorder from the couples' counseling session.

   • Evidence of her refusal to cooperate with treatment.

   • Any communication (messages, emails) where she states her refusal to return, her unhappiness, or her intention to live separately with your son.

   • Statements from her father and brother confirming their support and concerns.

   • Evidence of the emotional affair, if possible and relevant (though its direct impact on custody is limited unless it affects the child's welfare).

3. Prioritize Your Son's Well-being: While pursuing legal action, ensure your son's emotional needs are met. Try to maintain regular contact and provide reassurance.

4. Consider Mediation/Counseling (with legal advice): Although she is currently uncooperative, a court might suggest mediation. Your lawyer can guide you on how to approach this, if at all, given her mental state.

5. Be Prepared for a Lengthy Process: Child custody battles can be emotionally and financially draining. Be prepared for a potentially long legal process.

Your situation is challenging, but by acting strategically and with proper legal guidance, you can work towards securing your son's best interests and finding a path forward.

Here are precise responses to your queries:

Custody of 5-Year-Old Son:

You can file a Guardianship Petition under the Guardians and Wards Act, 1890 seeking custody, as the child is a minor. Indian courts prioritize the child’s welfare, especially at a tender age. File in the family court where the child currently resides or where you reside, seeking interim custody or at least visitation rights immediately.

Impact of Her Mental Health Diagnosis:

Her diagnosis of depression and personality disorder, coupled with her refusal to undergo treatment, is a material factor. It can be raised in court to demonstrate her inability to provide stable care, strengthening your custody claim. Independent medical assessment through court direction can be sought to substantiate these concerns.

Effect of Emotional Affair & Desertion:
While an emotional affair alone may not directly impact custody decisions, her desertion and conduct demonstrate instability, especially if evidenced. This strengthens your case, both for custody and potentially in seeking restitution of conjugal rights (RCR) if you desire reconciliation.

School Admission Without Consent:
Yes, both parents are natural guardians. Unilateral decisions like school admissions without your consent are unauthorized. You can issue a legal notice and seek court orders to restrain her from taking such steps without mutual agreement or court permission.

Given the facts, act swiftly by engaging a family lawyer to initiate custody and visitation proceedings.

For further help, pls connect 😊

Police would not intervene ask you to approach court fir necessary reliefs 

Q. I am going to visit my child along with my mother next week. We are planning to have the kid for two days to spend time with him . What are my options if my wife refuses to allow my son with me for two days . can I approach the local police station ?

Answer- It's understandable that you're concerned about spending time with your child. In India, child custody and visitation rights are primarily governed by the child's welfare, which is the paramount consideration for the courts.

Here's a breakdown of your options and whether approaching the police station is advisable:

1. Police Intervention:

• Generally, the police are unlikely to intervene directly in a child visitation dispute unless there is a clear court order in place that is being violated, or if there's an immediate threat to the child's safety. They are not typically involved in mediating parental disputes over visitation without a court directive.

• While some sources suggest that police can be requested to assist in ensuring visitation if there's a court order, or even to mediate a video call, they generally prefer to avoid direct involvement in what are considered civil or family matters.

• If you have a pre-existing court order for visitation and your wife is refusing to comply, you might be able to seek police assistance in enforcing it, but this is usually a last resort after other legal avenues have been explored. In a recent Supreme Court case, the police were directed to trace and hand over a child to a father in a custody battle, but this was an extreme case of a child going missing.

2. Legal Options (Recommended Approach):

Given that you want to spend two days with your child and your wife is refusing, the most appropriate and effective approach is through the legal system. Here are your options:

• File a Petition for Visitation Rights:

  • If you don't already have a court order for visitation, you should file a petition in the Family Court seeking visitation rights. This petition should clearly outline your desired visitation schedule (e.g., two days next week) and the reasons why it's in your child's best interest to spend time with you and your mother.

  • The court will consider various factors, including the child's age, preferences (if old enough, usually above 9 years), and the ability of both parents to provide a stable and supportive environment.

  • Even if one parent has physical custody, the non-custodial parent is typically granted visitation rights unless there are compelling reasons that it would harm the child.

  • Courts in India prioritize maintaining the child's relationship with both parents.

• Interim Orders for Visitation:

  • If you already have an ongoing divorce or custody case, you can file an application for interim visitation rights within that case. This would allow you to seek immediate relief for the upcoming visit while the main case is pending.

  • Courts often pass interim orders to ensure the child maintains contact with the non-custodial parent during the legal proceedings.

• Contempt of Court (if you have an existing order):

  • If you already have a court order granting you visitation, and your wife is intentionally violating it, you can file a contempt of court petition against her. This is a serious legal action, and the court can take action against the defaulting party.

Important Considerations:

• Child's Welfare is Paramount: Remember that all court decisions regarding custody and visitation are based on the "welfare of the child" as the paramount consideration. This means the court will decide what is best for your child, not necessarily what you or your wife want.

• Documentation: Keep clear records of your attempts to communicate with your wife about visitation, any agreements made (or refused), and any instances of her denial. This documentation can be crucial if you need to approach the court.

• Legal Counsel: It is highly advisable to consult with an experienced family lawyer. They can guide you through the legal process, help you draft and file the necessary petitions, and represent your interests in court. They can also advise you on the specifics of child custody laws applicable to your personal circumstances (e.g., Hindu Marriage Act, Guardians and Wards Act).

• Mediation: Family courts often encourage mediation to help parents reach an amicable agreement. This can be a less confrontational and more child-friendly way to resolve visitation disputes.

The police will not interfere in this issue.

Your complaint will not be entertained by the police because it is not a criminal offence.

Hence you may have to approach court with a child custody case  in which you can file an application for visitation rights as an interim relief .

Legal Position Regarding Child Visitation:

1. Under Indian law, both parents have equal rights over their minor child. However, custody and visitation rights are decided by a competent court, not by one parent alone.

2. If there is no court order currently granting you visitation or custody rights, your wife is not legally bound to let the child go with you, even if morally it is unfair.

Can You Approach Local Police?

• Police generally do not interfere in matrimonial or custody matters unless:

  • There is a court order being violated, or

  • There is imminent danger or abuse to the child.

• If there is no existing court order granting visitation, police may refuse to help, saying it's a civil dispute.

What Are Your Immediate Options?

1. Try to maintain calm and request visitation peacefully in front of family elders or neutral persons.

2. If denied, record the refusal politely (audio/video or written note) – this can help later in court proceedings.

3. Do not forcefully take the child or get into verbal/physical conflict – this can go against you legally.

Legal Step You Should Take Soon:

1. File a petition under Guardians and Wards Act, 1890, in the family court for:

   • Visitation rights

   • Joint custody or full custody, if appropriate

   • Interim relief for regular and holiday visitation till final disposal

2. Mention:

   • Your child’s young age (5 years)

   • Mother’s mental health condition and non-cooperation

   • That your attempts to meet your child are being blocked

3. You can also seek court-monitored visitation at neutral venues (like a children’s center or family court premises).

Additional Tip:

• Since your mother is also accompanying you, try to make the visit look more family-oriented and non-threatening.

• If there is any possibility, get a written consent from your wife or record her refusal politely without conflict.

Conclusion:

• No, police cannot compel your wife to send your child with you unless there is a court order.

• The best course is to file for visitation rights in court and collect proof of denial to strengthen your case.

• Avoid confrontation, but document the situation carefully.

You have the legal right to seek custody or visitation of your 5-year-old son. Indian courts treat the welfare of the child as the most important factor in custody matters. While the mother is generally considered the natural guardian of a child of tender age, this presumption is not absolute. You can approach the Family Court and file a petition under the Guardians and Wards Act, seeking custody or at least structured visitation rights. Given your son’s age, emotional needs, and your continuous involvement as a parent, the court will give due consideration to your petition.

Your wife’s mental health condition—diagnosed as depression and personality disorder—and her refusal to take treatment may significantly impact the court’s view on whether she is currently fit to be the sole caregiver. Her unpredictable behaviour, refusal to return even to her parents, and intention to live alone with the child despite lacking emotional or family support could raise serious concerns about the child's safety and upbringing. These facts, when supported by medical records and counseling notes, will strengthen your case for custody or shared parenting.

Her past emotional affair and the fact that she deserted you and took the child away without your consent can further establish a pattern of irresponsible conduct. Courts do not take such unilateral actions lightly, especially when one parent attempts to sever the child’s relationship with the other parent without justification. These facts may not only support your case for custody but may also form the basis for divorce proceedings if you choose to file for dissolution of marriage on grounds of cruelty or desertion under the Hindu Marriage Act.

She cannot lawfully admit your child in school without your consent, as both parents have equal rights in major decisions affecting the child. If she has already done so or is attempting to, you may send a legal notice to the school and raise this issue in court. The Family Court has the power to issue restraining orders against her from taking unilateral decisions regarding your son’s education, residence, or medical care.

You should act promptly and file a custody petition, along with an interim application seeking immediate visitation or temporary custody. The court may also refer the matter to a child welfare expert or counselor for assessment. You can submit evidence of your involvement, her mental health history, and any communication that shows her unwillingness to cooperate or care for the child in a stable environment.

If you require assistance in drafting and filing the custody petition, sending a legal notice, or initiating any other legal steps, please feel free to contact me. 

You need to file custody petition. Your consent is needed in everything unless she has sole custody 

You can file guardianship case and chances are you may get visitation rights.

G.Rajaganapathy
Advocate
High Court of Madras