child custody, maintenance
20-Mar-2023 (In Child Custody Law)
wife deserted me in April 2014. In December 2014, she sent me mcd under 498a notice. Till date 24 dates have passed of which 15 dates she has remained absent. She did not attend cross-questioning also. She is staying with a married person having illicit affairs with him. My daughter since then has been with her father who is drunkered and violent. My lawyer says he does not want to get case dismissed nor ex-parte so that she does not transfer the case, reopen the case, or put maintenance case after some months after case dismissal or ex-parte. How to get the custody of my daughter of 4 yrs age
As per law if the child's age is less than 5 years, the mother can claim for physical custody and father can have a visitation rights. But after the child has crossed the age of 5 years, the physical custody and up bring of the child will be considered by the court. So, if the child is in your wise's custody then you can file a case under Guardian and Wards Act seeking custody of the child if your husband denies you for the same.
A parent can claim the custody of the child under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act.
Section 17 in The Guardians and Wards Act, 1890 is mentioned below for your understanding:
Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will.
In most of the cases the Visitation Rights are awarded by the court to the parent to visit the child.
But in some cases the court can decline the visitation rights as well if the court can be reasonably convinced that visiting the child by the other parent will have any ill effects to the well being and growth of the child.
In your case if mother is not taking proper care of your child you can file child custody case under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act and produce evidences of such treatment by her in the court of law.
A parent can claim the custody of the child under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act.
Section 17 in The Guardians and Wards Act, 1890 is mentioned below for your understanding:
Matters to be considered by the Court in appointing guardian.—
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will.
In most of the cases the Visitation Rights are awarded by the court to the parent to visit the child.
But in some cases the court can decline the visitation rights as well if the court can be reasonably convinced that visiting the child by the other parent will have any ill effects to the well being and growth of the child.
In your case if mother is not taking proper care of your child you can file child custody case under Section 7 and 17 of the guardianship Act and under section 12 of the Hindu Minority Act and produce evidences of such treatment by her in the court of law.
Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
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