• Safeguard child's interest

My brother passed away last year. His wife Anita and son is living with us. Anita belonged to very small village and only 12th passed while we wish her to opt for higher education her parents is pressuring my family for marriage of Anita with my anther elder brother who is unmarried. They were threatening to take Anita and his son with them. They wish to remarry Anita and keep son with them as they dont have any son but have six daughters. 

I just wish to safeguard interest of both the child and his mother but she will do whatever his parents will say. What can I do in this situation.
Asked 11 months ago in Family Law from Indore, Madhya Pradesh
Religion: Hindu
1) it is your elder brother to take decision whether he should marry Anita or not 

2) dont bow down to pressure tactics 

3) custody of child would be given to mother only 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1) as widow she and her son would inherit husband share in property 

2) even after remarriage widow  does not lose her right on her deceased husband property 

3) In a landmark judgment, the Bombay High Court has ruled that a widow, even after she has remarried, has the rights over her former husband's properties, as she would qualify as Class I heir and the husband's kin would still be a Class II heir. 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1) even after remarriage widow would get custody of daughter

2) A widow can claim custody of her child fathered by her deceased husband even after remarriage, the Madras High Court has ruled

3) Solemnizing the second marriage with another person after the death of her first husband is not an illegal or improper act. In the aforesaid circumstances, we are of the view that the claim of the petitioner is legally sustainable, when the claim is made by the mother and natural guardian seeking custody.

4) welfare of child is paramount consideration . if mother is suffering from mental illness and it endangers child safety court may not award custody to mother . similarly if mother is violent or abusive or is drug addict application can be made to court by family members for custody of the child 

Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
Hi, You can't take the custody of the child.

2. After the death of your brother your sister-in-law and her son are the absolute owner of the properties which is left behind by your brother.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
I just wish to safeguard interest of both the child and his mother but she will do whatever his parents will say. What can I do in this situation.
Under the given situation, her parents are adamant to see their daughter re-married and has a secured future and they feel that her son would be a problem if he remains with his mother on her remarriage hence they may try to keep the son with them and also since they do not have sons they may like to keep this male heir with them.
In the circumstance it is for Anita to take a decision and nobody can force her decide as per their desire. 
You cannot legally force her to agree to your desire and plans yo have about her.  She may agitate and leave the house permanently too which will be a total loss to you.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
Can we take child's custody or what will be her right on his husband's property if she go to her parents home.
She being a legal heir to her deceased husband, she has full rights to claim her legitimate share in the intestate property left behind by her deceased husband along with her son. She cannot claim only she is remarried to somebody. 
For child's custody, she has the full custody of her child being a natural guardian to the child after the demise of her husband, no law can interfere in her this rights until her act is endangering the child's safety.




On what ground court can deny custody to mother
No legal provision to deny custody of her child to her until she is proved to be mentally affected and her state of health may endanger the safety and life of her child.

T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1. There is nothing you can do within the periphery of law to either stop her from remarrying or taking away the child with her. If she goes away with the child the maximum which her in-laws can do is file a petition for child custody to get visitation right to meet the child.

2. She along with her child and mother-in-law has succeeded to the property of her husband. Her right will not be curtailed even if she goes away. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1) you cannot stop your sister in law  and  your niece  from staying with her father merely because he is alcoholic

2)merely because you are rich and her parents are poor is also no ground for denying the mother custody of her daughter 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
1. Is your elder brother ready to marry Anita? If yes then it solves all the problem,

2. If no, then you can not stop her going with her parents since she is an adult,

3. If her child is minor in age, you can not stop her taking custody of her child,

4. However, if she remarries, you can file an application seeking her child's custody for his welfare.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1. She, her son and your mother will have equal share on the property of your deceased brother,

2. If she remarries, she will cease to have any right on her earlier husband's properties.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1. If child is under the age of 5 years, mother is considered as natural guardian and generally expected to get the child's custody,

2. While granting custody, child's welfare is considered as of paramount interest.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
1. Yes, in the given circumstances, you can claim the child's custody on the ground that it will be for his welfare,

2. Try to convince your sister in law to see reasons for her own child.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
If she leaves our home, she will be living with her parents. Her father is an alcoholic, not financially well, had been involved in money disputes, she is unemployed, only 12th passed. So can we fight on the basis that she and her child will have better future with us rather than with him, especially when she is not ready to remarry. Or is there any provision which can stop her and the kid to stay with her father on the above grounds.
Firstly you should be aware that she is not a kid that she will not be able to chose her life of her choice. 
You cannot interfere in her life though you may be a well wisher.  You can advise her, you can explain her the drawbacks in deciding to stay in her parents house.
You may convince her to return to your place where she can live like a queen.
But you cannot force her to oblige to your desire nor the law can force her to be with you.
As her mother and in the absence of the child's father, she is the natural guardian of her minor child, the law cannot forcibly separate the child from the mother on any ground especially on the grounds what you mentioned. 
You should put your affectionate efforts to convince her and bring her as well as the child back to your home and can take care of them accordingly.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
Yes on the touchstone of welfare of child you can claim the custody of child. In child custody cases the only consideration is the welfare of child. 
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0

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