Sumit 22 March 2018

Can father & grandfather jointly (as p1 & p2) seek custody

Dear Sir,I (hindu family) have filed contested divorce (cruelty grounds, section 13) 3 years back. After my divorce petition she filed sec24 and got maintenance amount 5000 per month for her. Then she filed CRPC 125 on behalf of my daughter (8 years old). I want to file custody for the daughter but my income is low 10k (although wife shown no income). My father (grandfather of ward) is having good income. Can I as Father and grandfather (dada) of ward jointly (as Petitioner No. 1 & Petitioner No. 2) seek custody of ward from wife? Would petition be sustainable under some law? If yes, can we write in petition that grandfather is willing to pay for child,(only) if we get custody of child ? If yes, than would grandfather will get bound to pay for child under crpc125, even if we lose custody case?

2 Replies

Adv. SIddharth Jain (Advocate ) 23 March 2018

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. However, you can still get custody of your child if you are able to prove negligent behaviour of your ex wife in taking care of the child. Howeover, it is not utmost required that the grandfather seek joint custody. For further queries feel free to contact me at isidjain1@gmail.com.

Vijay Raj Mahajan (Advocate) 23 March 2018

File Suit under the Guardians & Wards Act,1890 read with the Hindu Minority & Guardianship Act,1956 for seeking complete custody of the minor child as you are the natural guardian. The Welfare of the child paramount consideration and this cannot overrule the provision u/s 6 Act of 1956 which just a proviso, that the custody of minor who has not completed the age of five years shall ordinarily be with the mother; because if the Court find the Welfare of the minor is more with the father this proviso cannot stop it for granting custody to the father. The Supreme Court has held so in numerous cases.

The Grandfather can also be included as Co-petitioner along with the father as he will be fincancially supporting all expenses of the minor provided the minor is in complete custody of the father, the Petitioner.