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Clarification regarding child custody after divorce ?


In Child Custody Law
I am bengali married to a keralian guy(love marriage)since 2010. After marriage i went to bangalore, there my child was born(2012) and since then I am at my parents place. This is due to my husband's (right now in chennai from last 1 year)very bad behaviour... he beat, uses abusive language, treat me like gulam etc. In between I went there several times(for shor peroid 1_2 month) but his behaviour continues.... note: Every month he is giving us Money for monthly expense(through online bank transfer).. Last time he came to raipur(Nov 2016)beat me and went back and since then we don't spoke. About my job: I was working before marriage. After marriage I dint work for a year then work at bangalore till baby then left job since then jobless. My question is IF HE DIVORCED ME WHAT WILL HAPPEN TO MY CHILD (he is 4and 1/2 yes old ), his studies are going in raipur only. PLZ HELP I CAN'T LOSE MY CHILD .... HE IS MY LIFE PLZ HELP AND ANSWER ME....

Answers (1)


332 votes

In the matrimonial proceedings the question of custody, education and maintenance of children also crop up. The courts are asked upon to decide in respect of custody of children during the pendency of trial. The question of custody of children is an important matter which affects the children and parents emotionally, economically and socially. The matrimonial courts have been empowered under the matrimonial enactments to decide such questions and pass orders relating to custody, education and maintenance of the children from time to time. Such orders can be modified, revoked or changed. The courts exercised jurisdiction over children only if it has jurisdiction in the main petition. If the matrimonial proceedings are dismissed by the court, proceedings relating to children terminate automatically. A provision or order may be made by the court for the custody, maintenance and education; of minor children before passing of a decree or in the decree itself or even if a decree has been passed. Passing of a decree in the main proceeding does not put an end to the courts jurisdiction as it retains the power to pass orders in respect of custody, maintenance and education of the children even after passing such decree. The guiding principle for passing such orders is but approval things "just and proper" the interpretation which has been given to these words "welfare of the minor". Though the principle of welfare of the minor is the paramount consideration but the court can also take consideration, the wishes of the children also. To ascertain the benefit of the the court has to consider all other factors such as age, sex or wishes of the child. Thus, the power conferred upon the matrimonial courts is of considerable importance which has to be exercised cautiously.

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree, upon application by petition for the purposes make from time-to-time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.

Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:

Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an 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;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.


Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-

Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.

The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best
interest of the minor children.

The expression "Minor Children" includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children
which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.

In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.


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