Advocate Nitish Banka

Questions Answered by Advocate Nitish Banka

Q: Can a mother give child custody to father

Can a mother give child custody to father and approx in him much time divorce case gets settled

Advocate Nitish Banka answered
custody of minor child to fatherCustody of minor childGenerally as per law i.e section 6 of Hindu minority and Guardianship act 1956.The custody of minor child is handed over to the mother if the child is below 5 years old.But there are some cases in which custody of minor child was handed over to her father.How to have custody of minor child below 5 years if you are a father.In Anil Kumar pradhan Vs.Smt madhabi PradhanIt was held that though section 6 of Hindu minority and Guardianship act 1956.The custody of minor child is handed over to the mother if the child is below 5 years old but in this judgement the court has said that welfare of child is more important.Image result for custody of minor child to fatherWhat is welfare of child?Welfare of child cannot be measured by money or physical comfort alone,tie of affection also cannot be disregarded .moral and ethical welfare is more important in deciding the custody of minor child.if father was taking care of the child since birth and child has more affection towards father then even section 6 of Hindu minority and Guardianship act 1956 is not a bar.held in kajal vs. Rajesh RanaIn Nil ratan Kundu Vs. Abhijit KunduThe judgement of the child is also a relevant factor though final decision rest in child’s ordinary comfort, health, contentment education and intellectual development.V. Ravi Chandran (Dr.) vs. Union of India and others in which a three-Judge Bench had categorically held,that under no circumstance(2010)1 SCC 591 (2010) 1 SCC 174 can the principle of welfare of the childbe eroded and that a child can seek refuge under the parens patriae jurisdiction of the Court.The court could go into the merits to determine as to where the permanent welfare layand ignore the order of the Foreign Court or treat the fact of removal of the child from another,country as only one of the circumstances and the crucial question as to whether the court (in the country to which the child is removed)would exercise the summary or elaborate procedure is to be determined according to the child’s welfare.By Adv Nitish Banka

Q: What to do if their is a dispute with property

My grandfather left our ancestors property without will and my family is staying there since my father's birth but my father got transferred to rewari so we have put our property on rent but his sister is demanding half rent. What to do now???

Advocate Nitish Banka answered
Your sister cannot claim on the property without establishing her legal right title interest in the property at competent court. Burden is on her to prove her share in the property in court of law. So as of now you dont have to do anything. If she is interfaring in peaceful possession then you will have a remedy

Q: Legal recourse in case of health issues caused by flour mill

Hi Sir/Maam, requesting your opinion... in front of my house, there is a flour mill, causing huge inconvenience, air pollution and noise pollution and disturbance. We have small kids, causes asthma because of flour coming out through exhaust fan. Please advise how can we get rid of this

Advocate Nitish Banka answered
You may file for permanent and mandatory injunction civil suit for removal of the factory. You can make mcd as a party and file the suit. Let mcd takes a status report of legal validity of the floor mill in residential area.

Q: Wife wants to get mutual divorce done but husband un willing for same

I am by profession a doctor and having two daughters.me and my husband separated since January 2014 and he is not giving a mutual divorce. And I don't want contested divorce kindly guide me other way out.

Advocate Nitish Banka answered
Send a legal notice to the husband and then file go for Maintenance case for your daughters. The idea is to pressurize your husband to give a mutual divorce. From my experience in 90% of the cases gets resolved by legal notice and call for settlements.

Q: Procedure for filing divorce

Dear Sir/Ma'am, Me and my wife have decided to get a divorce. This would be a very mutual decisions and we have being living separately for 7 months now. We got married on 12th December 2014 and we decided to part ways on 5th February 2016. Both of us are presently staying in Mumbai. We got married in our home town but we didn't apply for a marriage registry/marriage certificate from the court. Both of us are Hindus and the wedding ceremony was performed as per Hindu custom & rituals. Kindly let me know the way forward the the complications if any. Thanks in advance!

Advocate Nitish Banka answered
Please guide me which kind of divorce you need to file is it mutual consent or contested divorce both of them has different procedure plus nature of divorce case depends upon the facts of the case. therefor please clarify