special marriage act,child custody
Querist :
Anonymous
(Querist) 12 March 2010
This query is : Resolved
i have had a intercaste marriage with a christian , i am a hindu.now have a baby 6 months old.i want a divorce due to incompatibility with the partner.i wanto know will i be able to get the custody of my child?(boy).i am a DR by profession
A V Vishal
(Expert) 12 March 2010
IN VIEW OF THE AGE OF THE CHILD, THE COURT WILL GRANT CUSTODY OF CHILD TO YOU, BUT APART FROM THAT THERE CAN BE MANY OTHER CONSIDERATIONS BY THE COURT.
Querist :
Anonymous
(Querist) 12 March 2010
like what?
Querist :
Anonymous
(Querist) 12 March 2010
i live in Dubai presently.and i wanto get the child badly as i feel he will be broght up in unhealty way
adv. rajeev ( rajoo )
(Expert) 12 March 2010
considering the age of the child court may not allow you to take the custody of child, if you filed a suit against your wife.
I had come across the karnataka High Court judgement that mother is the proper person to take the care of the child.
Raj Kumar Makkad
(Expert) 12 March 2010
If you are the mother of the child then definitely you are the fittest person to be granted the custody of baby but if you are his father then you can get only visiting rights in the light of prevailing law in India.
Guest
(Expert) 12 March 2010
In the case of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, a Bench of the Supreme Court comprising Justices C K Thakker and D K Jain held that the child’s welfare is the primary factor in deciding in whose custody the child should be placed.
In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
In Halsbury's Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:
'809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.'
The stability and security of the child is also an essential ingredient for a full development of child's talent and personality."
Sukhija
(Expert) 12 March 2010
Such a detail reply by experts on record , nothing remains to add further.
James Arun
(Expert) 12 March 2010
From your postings, it appears that you are the father, and an Hindu. Your wife is a Christian. You are in Dubai. You are a Doctor. It also appears that the child is not with you, and that the child is with the mother, and both of them are not in Dubai.
Before you get into litigation, please ask yourself this question. Is what you are doing to your wife and your child fair?
Your wife has just given birth to a child. Because of the pregnancy, there is a high possibility that your needs have not been met, and you feel that there is incompatibility now. This is very common to almost all husbands. Your wife is now a mother, and she will give more importance to your child than to you, expecting you to understand her biological and physiological changes.
Look at your child. He is a 6 month old child. Does he deserve to be fatherless or motherless? Did he ask for a broken family? Unless the reasons are grave and extremely serious, you should keep your focus on what is good for the child.
Yours was an intercaste marriage. I assume it was a love marriage. Think about these two people - your wife and your son, and what you have contributed to the "incompatibility" and if the situation can be improved by family, friends or even professional counselling, before you opt for a long litigation for custody.
Good luck!
James Arun
arunkumarpj@gmail.com
Querist :
Anonymous
(Querist) 12 March 2010
thank you for the concern and the advice.really true and it reflects my concern.I think in my question it is not clear,i am the mother of the child.the very fact tat my child will be fatherless is bothering me.On the other hand i feel he dose not deserve to see his parents fight every other day and the impact of these r things on him.Also what kind of a person he would be if he has a filthy minded father around him when he is growing .Lot of things are there in my mind,totaly confused.And i still love my husband,though he dose not feel the same for me.
