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child custody


Dear All - I need guidance in my case. Wife left matrimonial home in Sep-2014 and does not want to return. I have 2 kids - one is 5 years (daughter) and other 2 years (son). Wife forcibly left in middle of daughters school session did not enroll her to any school last year. This year in Feb-2015 she is enrolled to a new school. I filed RCR on July-2014 and as of now got 2 dates but wife did not appear. So it seems I will get RCR ex-parte. Some people are suggesting to add a child custody petition along with RCR. Will it be a good strategy to add child custody petition to the ongoing RCR and then probably file an execution petition and get the children? Or  filing child custody separately, after getting RCR decree, will be a good strategy.  My elder daughter is 5.3 months old. I live in Mumbai (matromonial home) and wife is now in Calcutta (parental home). Please Kindly advise.  It is little urgent.

Lawyer at Supreme Court of India



If you have the child custody then you becomes the De facto Gaurdain Right, If she needs the child custody she will have file the petition and seek custody orders.


Warm Regards

Kapil Chandna Advocate


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Logical and Legal Advisor at Family Court

Headache gone.


Congratulatoins boy.


Let her fie custody rights if she has dumm.  she wont get custory rights and also visitation rights, vapas aaye toh chaar dena joota leke kaan ke nicche.  Anyway all the best.

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Congrats Bro, carry on your fights.......


Thank you everyone. However kindly note that my wife the children along with her to her parental home and my daughter is admitted to a school there. Last year (in Sep-2014) when my wife took away my kids my daughters session was mid-way and after going to her parental home my wife did not admit her to any school. This year in Feb-2014 she has been admitted to a school.  So which one should be better - adding child custody petition to ongoing RCR or filing a separate case u/s 12 r/w section 25 of GWA for child custody with an interim application for visitation rights. Kindly advise. Please find below section 25 of GWA for your reference. Kindly suggest.

25. Title of guardian to custody of ward.-

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the 1[ Code of Criminal Procedure, 1882 (10 of 1882 ).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

The purpose of your filing RCR is to get RCR decree, one year after that divorce decree on the ground of non-execution of RCR, then do not file any custody or visitation  applications or petitions, till you get divorce decree.  After getting the divorce decree, file custody case along with visitation rights.  In the meantime, not to miss to send money for the maintenance of your children, which will come handy to decide custody case in your favour.  But, your RCR is intended really to bring back your wife along with children, then you can file custody application in RCR case itself.

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Thank you Sir. But I have 2 queries. 

1) Dont you think it will be too late if I wait for 1 year after RCR and then file divorce and then child custody?

2) Yes my purpose of filing RCR was to get my children & wife back. However can you let me know which one would be a better strategy - filing a separate child custody or adding a child custody petition in RCR itself? 

3) Does RCR decrees allow child custody? Can you please help me with a citation where RCR decree along with child custoday was awareded and the father brought his children back after getting the decree?


The father is the primary guardian for a legitimate boy and unmarried girl and their property, while the mother is the secondary guardian. However, the mother is the primary guardian for all children under the age of five. Natural guardians can take actions that will benefit and protect the minor and his or her property. The welfare of the minor will be the primary consideration in the appointment of a guardian.

In your case both are almost under 5 years of age hence seeking custody at this age of the children may not favor you though your true intentions are to keep the  children back with you for providing them with good welfare activities including good education and better living facilities. 

If you have decided to file a child custody case along with RCR,  you can  apply the provision of either GWA or HM Guardianship act in anapplictionalongwide the RCR case or a separate case where the children currently reside. In any case you can always file an Interlocutory  application seeking visitation rights to visit your children periodically as an interim relief. 




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