Child custody
Pradip
(Querist) 26 July 2015
This query is : Resolved
Respected Sir,
The facts are as below:
1. Wife left matrimonial home keeping minor daughter in custody of husband.
2. She file 97 CRPC and without any hearing SDO handover minor daughter to wife.
3. Wife did not allowed to go to school to minor child for one year and as a result minor child in same class for three years.
4. Wife has no source of income and file maintenance case against husband
5. Husband file criminal revision in High Court and high court order as below:
By virtue of the order passed by the learned Executive Magistrate at XXXXXX in XX. Case No. XX of XXXX dated XXXXXX, the minor child, daughter of the petitioner, who had been brought before the learned Magistrate on the strength of a search warrant issued under Section 97 of the Cr.P.C., was allowed to go into the custody of her mother who is the opposite party in this case.
Perusal of the allegations made in the original application under Section 97 goes to reveal that the said minor child was being neglected/mistreated in her father’s house. However, there was no
allegation that she had been forcibly taken away by the present petitioner or was being kept in confinement.
In the given circumstances, the order for issuance of a search warrant, if passed by the learned Magistrate without hearing the petitioner would appear to be inappropriate and somewhat
highhanded.
Nevertheless after production of the child, the learned Magistrate opined that in view of her reluctance to go with her father, her betterment apparently lay in putting her mother, i.e. the opposite party in the role of her custodian.
From the standpoint of this Court, undoubtedly the welfare of the minor child is the Paramount consideration. So the Court is not inclined to reverse the impugned order notwithstanding the fact that it was passed in an irregular manner by the learned Magistrate and apparently in excess of his lawful jurisdiction.
It has transpired that a Matrimonial Suit involving the parents is actually pending in the competent Court at XXXXX.As such the petitioner is at liberty to apply for seeking custody of
the child in the aforesaid proceeding which shall be decided by the concerned Court on its own merits.
With the above observations, the revisional application is disposed of without costs.
Sir,
No matrimonial suit is pending in any court in my case.
What should I do for the custody of the child who is now 7 years old and studying at KG1?
CAN I APPROACH SUPREME COURT?
Or
File custody case in lower court?
Your valuable advice requested please.
SAINATH DEVALLA
(Expert) 26 July 2015
Mother is the natural custodian of the girl child till she attains the age of 18yrs
V R SHROFF
(Expert) 26 July 2015
File child custody case.
as paramount interest of child is to allow you to have her custody and education..
u hv to file custody case : not in lower court but either in district court / or in Family court , where child reside..
ADV-JEEVAN PATIL, MUMBAI
(Expert) 26 July 2015
Regardless of filing in district court or family court, Balamce of judgement will lie at side sppuse who takes her best care n education n age of the dependant.
