Contested divorce,file custody or not ?

969 votes

As per my understanding, the divorce case filed by you is presently pending, and the child is not in your custody. In such a situation, you can file an application seeking custody of the child or visitation rights in the same pending divorce proceedings. There is no need to wait until the divorce case is completed. The divorce case may take approximately one 6 months, depending on the progress of the evidence and arguments. However, filing a custody or visitation application will not necessarily delay or drag the main divorce proceedings. The custody application can be taken up separately while the divorce case continues. If you are seeking custody of the child, it is important to clearly and properly state the reasons why custody should be granted to you. The pleadings should be strong and should specifically explain your relationship with the child, your ability to take care of the child, and why custody is in the best interests of the child. Alternatively, if you are not seeking immediate custody, you can seek visitation rights to enable you to meet and spend time with the child. Since you have not been able to visit or see the child and have not been involved in the child’s care for a considerable period, the circumstances and reasons for the same should be properly explained in the application. Therefore, you can file the appropriate application for custody or, alternatively, visitation rights, during the pendency of the divorce case itself, without waiting for the final disposal of the divorce proceedings.

Advocate Tejaswi Punnamaraju LawRato

999 votes

Namaste, Since your divorce petition is already pending, the better course is to file an interim application for custody and visitation under Section 26 of the Hindu Marriage Act in the same divorce case rather than starting a separate petition under the Guardians and Wards Act Section 26 specifically empowers the court hearing the divorce to pass interim orders on custody, maintenance and education of the child while the case is pending, so you avoid a second round of pleadings, notices and evidence in a separate case A separate Guardians and Wards Act petition is advisable only if the child presently lives in a different place from where your divorce case is pending, because that petition must be filed where the child ordinarily resides, or if you want permanent guardianship independent of the divorce outcome Filing a custody or visitation application will not delay your divorce case, as it is an interlocutory application decided on affidavits and a short hearing without stopping the main trial On visitation, courts are generally willing to grant it at the interim stage because the Supreme Court has repeatedly held that the welfare of the child is paramount and that a child has a right to the love and company of both parents Since the child has been kept away for years, the court will most likely begin with supervised or weekend visitation and video calls to rebuild the bond before considering full custody, and if the child is around nine years or older the judge may also speak to the child to know their wishes As for time, once cross examination begins it usually takes about six months to one and a half years to reach judgment, depending on the number of witnesses, adjournments and the workload of the court Section 21B of the Hindu Marriage Act requires divorce trials to proceed day to day as far as possible and to be concluded within six months of notice, so your advocate should insist on short dates and oppose unnecessary adjournments, and if the delay continues you may approach the High Court seeking a direction for time bound disposal To advise you precisely I would need to know the age of the child, where the child is presently living, which court your divorce case is pending in, and whether any earlier custody or visitation application has been filed My advice is to file the Section 26 application for interim visitation immediately in the pending divorce case so that you start meeting your child without waiting for the final decision

Advocate Naresh Gaddapati LawRato

527 votes

yes sir you can ask for the visitation rights during the case .yes you can ask for those rights if the child is kept away since many years. yes asking custody might delay the divorce but it might take a year or more . depends sir whether the visitation will be given without delay.

Advocate P Vaishnavi LawRato

844 votes

It would be advisable to promptly initiate appropriate proceedings under Section 26 of the Hindu Marriage Act, 1955, seeking visitation rights (now commonly referred to as parenting time). However, the question of custody depends on several factors, including the age and gender of the child, the child’s wishes and preferences (depending on age and maturity), emotional comfort, welfare, and the ability of each parent to provide a suitable environment. Ultimately, the child’s welfare and best interests are the paramount considerations in determining custody and visitation.

Advocate Chanakya Bandy LawRato