• Divorce and child custody

My friend seeks divorce from her husband. She has a daughter of 5+ age. Her husband has never taken any participation in the child's parenting. They are staying separately since last 5 years. Recently the husband is showing interest to stay together and claim rights of the child. my friend doesn't want to do it but she wants a settlement for the child's benefit. What should be her legal approprate step.
Asked 8 months ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) best option is joint custody of child wherein child gets love and affection from
Both parents 

2) file for divorce by mutual consent only wherein issues relating to maintenance , alimony are incrporated in consent terms 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
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If she wants to end her marriage then they can execute a MOU to incorporate the binding terms of separation and then file mutual consent divorce. If he does not agree to the settlement desired by your friend then she may sue him for maintenance for herself and her child. Maintaining the child is the joint responsibility of both parents.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) welfare of child is paramount consideration in deciding custody of child 

2) custody of girl child is generally awarded to mother 

3) mother lap is regarded as gods cradle 

4) however recently law commission has recommended joint custody be awarded to both parents 

5) even if father is not awarded custody he would get visitation rights 

6) mother can claim maintenance fir the child 

7) court would award alimony in event of divorce 

8) please note that contested divorce takes 5 years to be disposed of hence advised you to go in for divorce you mutual consent 
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. What settlement your friend desires with her husband for her daughter's benefit?

2. Mother is the natural guardian of child up to his/her 5 years of age and generally mother is given the custody of female child even after 5 years of age. So, your friend need not worry for losing custody of her daughter,

3. She can negotiate with her husband for Mutual Consent Divorce on being given adequate settlement amount for herself and her daughter to maintain themselves through out their lives,

4. Demand payment of maximum amount of the settlement amount while filing the MCD Petition and the balance amount before appearing for the 2nd motion at the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
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1. Any body can claim any thing from the Court but the Court will decide about validity of his claim after hearing both the sides with evidence,

2. Your friend  shall have to counter his said claim by submitting evidence of her allegation about his uninvolvement with the child so far,

3. She can certainly file a divorce suit (if her husband refuses to sign the MCD Petition) on the ground of cruelty claiming maintenance for yourself (if you are not employed)  and your child.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
My friend seeks divorce from her husband. She has a daughter of 5+ age. Her husband has never taken any participation in the child's parenting. They are staying separately since last 5 years. Recently the husband is showing interest to stay together and claim rights of the child. my friend doesn't want to do it but she wants a settlement for the child's benefit. What should be her legal approprate step.


Your friend can arrange for a mutual consent divorce with child custody arrangement with her and allowing him to visit the child by visitation rights on the occasions mutually agreed between both.  In turn she can ask him to settle a lumpsum amount in the name of the child to be deposited in any nationalised bank keeping her name as guardian to the child.  This can ensure security for her child's future. 
T Kalaiselvan
Advocate, Vellore
14136 Answers
127 Consultations
5.0 on 5.0
Can a father claim rights of a girl child for whom he has not taken any responsibilty and has not spent more than 5 days in the total 5+ age of the child. He also has not spent any money in the education or upbringing of the child. Can the mother claim divorce and an alimony from him.

The father being a biological parent and a natural guardian can very well claim custody of the child however if the child's interest is taken into consideration the custody may be give to the mother itself in this case because the father never participated in the parenting of the child for the last 5 years of so hence it wold not be advisable to leave the child under the custody of her father who has by now become a stranger to the child and the child may be frightened to live with a stranger. The matte if put this way before court, the court may permit the mother to have the custody of the child for ever. 
The mother and child can seek permanent alimony also from the father of the child. 
T Kalaiselvan
Advocate, Vellore
14136 Answers
127 Consultations
5.0 on 5.0
she should file an application for custody of child before the court of district judge. 

however father is the natural guardian of a child of more than 5 years but father carelessness is a ground which debar him to take custody of child. 

Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
she should prove before the court that mother's custody would be in interest of child because she has been caring very well during the period when her father abandoned her. 

this is sustainable ground and she can easily take custody.
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0

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