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rajeshwari (professional)     10 December 2014

A mother in need

Dear friends, Please guide me on the following : My husband has filed a custody case for our 3 year old son u/s 26 of hma. I want to know :


1. The consent of child matters upto what extent in such cases. I mean in case court awards him overnight custody on weekends and if the child doesn't want to go, can he take the kid forcefully saying "he will be fine"?


2. If both husband and wife are qualified and financially sound (but unfortunately marriage didn't work out) then how does the court decide about the custody, provided me and my son are living separate from my husband almost since his birth.


3. My son is going to good school. What i assume is that to take the custody from me, my husband shall prove shortcomings in my upbringing and failing to that will he only get visitations or more than this?


4. I am not a kind of lady who will refuse what is his right as a father, but I am very serious about the mental development of my child. I am scared that by such visitations we will definitely challenge the mental health of our son. Is there is any law where I can say such visitations are harmful for the kid especially at this tender age when he is practically not aware of "father". I tried to make my spouse understand this but he won't agree as it has now become an ego issue for him. He never asked about the kid when the baby was small, but now when he has grown up, he is playing his tactics.

Please give me advise how can I minimise the effect of visitations.practically I don't want my husband to misuse his visitations and don't want to give him overnight custody at all even if he crosses the age of 5. I just want the kid to decide alone on this issue whenever the age comes.  Please guide me what should be my submission in the court.


 10 Replies

InnocentMan (Self Employeed)     10 December 2014

Why are you so much scared ? Do you think Kids are just property of Mother? Why do you want keep father away from the Child. A Father in need of sharing love to his kid and get the love and tender touch of his Son.

Govt of India is making Shared Parenting as Law in this Winter Session of the Parliament. Basically Govt wants to give the custody of Child to both the parents. It is needed also.

I just want the kid to decide alone on this issue whenever the age comes.

Then give Custody to father, let the child decide when age comes.

rajeshwari (professional)     10 December 2014

@Innocentman: I do understand this very opinion of yours. But not every man is innocent and not every mother thinks that kids are the "property" of hers.

anilcochin (Proprietor)     10 December 2014


I informed a College friend of mine, in whose case the the husband abandoned her & child and has not even seen the child since birth. Her son is 10 years old now. Yesterday I informed her about my divorce and this is what she had to say on Whats app. Msg1 : Don't do this to your child. Msg 2: My personal experience; child suffers and goes thru a lot Msg 3 : I know how I have handled it and I am still going thru it Msg 4 : Patch up for the child... that too a girl child.

This is a case where divorce has not been filed by either party & the father is not in contact with them.

Rest if for you to decide.

Simran Kaur (Advocate/Legal Consultant     10 December 2014


I understand the child is 3 years of age as of now and has been living with you ever since his birth. In matters pertaining to the custody of a child, the child's wishes and his welfare weigh heavily with the court. If you are financially sound and able to tend to other needs of the kid, I don't see any reason why you can be denied the custody. However, it is very unlikely that the father will not have visitation rights in respect of the child. The Hows and Whens are for the court to decide, taking into consideration the facts and circumstances presented before it during the hearing.


rajeshwari (professional)     10 December 2014

@anilcochin: thank you so much for your concern. I tried my spouse to convince on the same but he won't agree for a common life. I really wish in the name of kids people shall stop satisfying their egos.

@ simran kaur: simran can you please explicitly tell me that in worst case if he is allowed to have overnight custody of the child on weekends or something like that, can he take away the child forcefully just because he has the court orders provided the kid doesn't want to go with him? can i do something in that situation? Also, if both husband and wife are shoulder to shoulder then how does the court decides?

Aneesh Trivedi (Advocate)     11 December 2014

Every mother thinks that she is very caring, she can brought up the child very well of course in best way than father did , but the same lady admit that her father was his hero, her brother was best man in the world,,,,,,, but her husband have all the bad qualities ever design by god.

this is the thinking of every wife every lady she try to keep away the child by father and always say " i am not that type of lady, i understand father is important for child but but but ... i never allow even shadow of husband on my child he is not capable to brought up the child as i can?

i dont allow husband to touch my child because he is so and so....

these are common words form ladies but they forget there is no weapon/ law / rule and even principle  in the entire universe which can kept child away from his father....................

whatever be image of father [ wife create in front of child or] he really is, but FATHER is always dearest to child....
all wife imagination are just like sands palace on sea shore.... there is need of one wave to come and all imagination shattered immediately................

i want to say by this for the foolish ladies that do realise the acatual eternal fact the bond of blood....between father and child.

Rajkiran123 (Manager)     12 December 2014

Please do not let children suffer because of parents issue. Children need both parents love but unfortunately the current laws are so biased and hopefully shared parenting will be a reality very soon in India. Plan your child future together and obey court orders than thinking of ways to create distance between child and father..

Aneesh Trivedi (Advocate)     12 December 2014

@ this should be understand by wife who deserted her husband and restrict the child to meet his/her father.

they are commiting a sin and they must pay for such in future you can see in any crime episode the same thing will hapeen altimatley the lady will either culprit or victim of her egoestic deeds


rajeshwari (professional)     12 December 2014

@498avictim: Hey thanks and may be joint parenting will solve half of the issues. I requested my spouse to withdraw all the litigations from both the ends and keep meeting the kid, be friends again and lets use him to get united one day and not use him to satisfy self ego! (unfortunately present conditions on both the sides donot allow us to be united just like that) I also requested him just to let the time pass and for the sake of kid lets try in positive direction. But surprisingly he didnt agree and went to the court even when i was allowing him to meet the kid outside. In that case shall i not be worried. he filed the case in the southern most part of the country giving false evidences that we were the residents of that area. Do you really think his intentions are to meet kid or to harrass me? Thankfully i have got it transferred in my region and now i know that being father no court can stop him meeting his own child but what is troubling me is what if he start misusing his visitations?

rajeshwari (professional)     12 December 2014

My questions still remain the same:

1. Consent of the child matters upto what extent? does it qualify even against court orders?

2. if husband and wife both are equal, then court decides on what factors?

3. failing to prove any shortcoming in the upbringing of the child, does the other parent get only visitations or more than that?

4. what if one parent start misusing the visitation rights?

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