Age of child 5 years father not ready to give up custody what to do


Age of Child Below 5 years. father of that child not ready to handover the coustody or that child to his mother. please provide remedey 1) Whether applicaton u/s 97 crpc will be proper or 2) Remedy under Guardian and Wards Act will be proper

Answer

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 husband’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.


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