Child custody
INDIAN
(Querist) 29 April 2013
This query is : Resolved
My elder child of 2 years 9 moths is with my hasband which is kept forcefully and litigations are going on.between me n my husband like cases of 125 , HMA 13 and finaly police complaint by me against husband and inlaws which is at investigation stage. I want my child with me . Can the police help me to take my child back ? If I file child custody case then how long it will take to give my child custody by the court ?
Advocate M.Bhadra
(Expert) 29 April 2013
You can file a Criminal Case under section 97 Cr.p.C. in Magistrate Court
97. Search for persons wrongfully confined.- If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
You can also file a suit of Custody of child under Wards and Guardian Act in District or Family court.
Custody Under Hindu Law:
All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.
The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.
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. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.
Nadeem Qureshi
(Expert) 29 April 2013
section 97 have not banifited file a custody suit before district judge and try to get custody
section 97 of Cr,PC
97. Search for persons wrongfully confined.
If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue, a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
Devajyoti Barman
(Expert) 30 April 2013
If the child was taken forcefully from your custody, then criminal case of kidnapping lies. You can lodge complaint with Police.
Civil suit is also there but it is so time consuming that hardly people get any relief.
INDIAN
(Querist) 30 April 2013
When Child is taken from me forcefully by my husband then I was at my matrimonilal home so is it possible to file the criminal case of kidnapping and this story is also of about 7 months back . Kindly advise .
Devajyoti Barman
(Expert) 30 April 2013
Yes, it can be. place is not important. importance is of from whose custody the child is taken.
INDIAN
(Querist) 30 April 2013
I have no prove that he has taken the child forcefully from me . In my 498a complaint and application of 125 I have stated that child is kept forcefully and I was in pregenacy of 6 months of 2nd child. Should I file my complaint direct in court or in the police station ?
Vidhi Joshi
(Expert) 30 April 2013
yes you need to approach police station
INDIAN
(Querist) 30 April 2013
I requested that I have given my dowry demand complaint to commissioner of police and in complaint I have stated that child is kept forcefully. Is that sufficient or I will have to give separate complaint for this ?
Vidhi Joshi
(Expert) 30 April 2013
i hope you have an acknowledged copy of the complaint with you...
INDIAN
(Querist) 30 April 2013
I m having the duplicate copy with complaint no and date
