Advocate Rameshbabu K

Questions Answered by Advocate Rameshbabu K

Q: Legal provisions for Child custody after Divorce

Are there any rule that after marriage girl should live with in-laws as per Hindu Indian lae? After divorce whom should the child go? Mother bor father?

Advocate Rameshbabu K answered
Hi,Child custody after DivorceAs per the law untill the child completes 5 years the mother has the every right to keep the child in her custody and it cannot be challenged unless there exists certain essential grounds which may affect the welfare of the child.After the completiion of the 5th year a petition shall be filed as per the GUARDIANS AND WARDS ACT to claim the custody of the child through the order of the court.After the Birth of the child, he/she will require mother's nurturing more than the father's care. The welfare of the child is of primary importance in deciding cases for custody of child. Hence in the instant case it is imperative mother gets custody of the child after birth.After divorce in india it is simply not possible to keep the child with father because after the birth of a child, the baby needs mother more than the father. It is simply impossible for a man to take care of his newly born child alone.In such case the custody of the child ordinarily will be with the natural mother up to 5 years of age and the father gets visiting right.The court while deciding the issue with regard to child custody considers the "welfare of the child' only and in order to grant the custody the tender age of the child plays a big role. But you are tellign us that a divorc case is underway - right!Under S. 6 The Hindu Minority and Guardianship Act, 1956 clearly provides that natural guardian of a minor child is the father however up to the age of 5 years custody shall ordinarily be with the mother. In order to get the custody from the mother the father has to prove in the court that the 'welfare of the child' will be best if the custody is granted to him after the child is born as he only can be the best person which help in the over all development of the minor child.Not only the divorced lady but even one who has remarried after the dissolution of her first marriage can be allowed to keep the minor child if the consider that welfare of the child is more secure with her then the natural father.There are instances where father has been granted custody of minor child if it was found that the welfare of the child not secure while staying with the mother.But here is a mind bender fact by way of a old query before us so in your case if you have such evidence or circumstance to prove in the court you can be granted the custody of even minor child less then 5 years of age otherwise you will get visiting rights only plus you will be ordered to pay for the maintenance of the child on regular / monthly basis post divorce.If your wife after divorce herself is ready to give away the custody of child to the father of the child then court will not interfere in such case, this will be mutual understanding between the parties."Hindu Minority and Guardianship Act" and "THE GUARDIANS AND WARDS ACT,1890". RegardsK.RAMESHBABUADVOCATE.