quescustody of minor son

i have a minor son of 10 year staying with my estranged wife living separately from me since 8 years. wife is presently unemployed.I am Class one gazetted officer in government service. me lives in joint family having niece and nephew of 15 and 8 years respectively. Son is deteriorating badly in all spheres of human development whether academically, socially and mentally as has been brought on record by me. Please let me know the authorities in this regard which may be helpful for me during arguments stage of the case and get me the custody of my son.

  • ansThe laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother till the age of 5 years.  However the Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’.

    As per Section 9 of the Guardian and Wards Act, 1890 Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides." It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. 

    Hence you can file the application for custody in the district court.

     

  • ansThe laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother till the age of 5 years. However the Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’.
    As per Section 9 of the Guardian and Wards Act, 1890 Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides." It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor.
    Hence you can file the application for custody in the district court

    Advocate Sudershani Ray

      Kailash Hills, Delhi

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