How can I file for child custody and claim maintenance

822 votes

Supreme Court in Nil Ratan Kundu and Another v. Abhijit Kundu reported in (2008) 9 SCC 413. In paragraph 52, the Court dealt with the principles governing the custody of minor children which is as follows:

"52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."

In view of the above judgment it is very much clear that welfare of minor child is important factor before deciding issue of custody.
further have you filed any case for maintenance? if yes kindly give full details
Thank you

Advocate Siddharth Dev LawRato

727 votes

Ma'am
As per your query, what i understand is that, there is a matrimonial dispute going on between you and your husband, which is still pending in Court and not decided yet. With refrence to your child custody query, i would like to clear first that first of all it is your prerogative to decide jointly with your husband when you are separating officially before court, as, with whom the child custody will remain. Court will only give its stamp on your mutual decision as to who will keep the child with him/her. Your mutual decision is the best. But, if you and your husband are unable to decide as to who will be having the custody of child and about visiting rights, then, in that case Court is the final authority to decide who will be having the custody. Till then, the person who is having the custody of child will keep that child with him/her till the orders of the Court.
The principle or the rational on which the court decides about the custody of child is the " WELFARE OF CHILD ". Court decide on the principle that with whom the child wants to stay or by giving whom the custody of child, the welfare of the child will be supreme. Court see all the things for e.g salary of both mother and father, how far the school is from the residence of parents, who is having more earnings and income, persons other than parents, in the family, who can look after the child in absence of parents etc.
Child welfare is supreme. Court will ask the child also as if with whom he/she want to live n spend his/her life. There can be an order of settlement between husband and wife, if they decide mutually as if anybody of them can keep the child with him/her for whole life, but that also can happen only if the husband and wife decides mutually, or, if anybody of them says that i don't want to keep the child.
So, in my opinion, first you people have to come to terms of agreement as if who will be having the custody and also about visiting rights. But, if you are unable to settle the matter mutually then then the Court will decide solely keeping in its mind the welfare of ChildSo, it will be best for you to decide mutually, because if Court will be deciding then any of you can get the custody rights, and you have to follow the Court orders then in that case, in whoever's favour the Court gives order.
You can go for mediation again, by mentioning before the Court that there are still, chances for mutual settlement. In that case Court can again refer both parties to mediation cell, and will provide you one more chance to settle mutually. But for that you have to make a request before the Court.

Advocate Sunil Gulia LawRato

681 votes

There are two ways to take custody of child. First, if there is amicable settlement for divorce between you and your husband, then you can simply prepare an agreement which is signed by both the parties and then it would be part of your petition for divorce by mutual consent. It would be on records and the custody would be given to you with / without visiting rights to your husband. Second option is, if your husband is not willing to give you the custody of child, then if the child is with your husband, you have to file a petition for custody of the child before the concerned court. In case the child is with you, then let your husband fight for his rights. Dont worry.

Advocate Brijinder Khurana LawRato