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MOHAMMED JAHANGIR ALI (AGENT)     02 January 2011

Child Custody

 

Hay Friends,

                          my name is Jahangir ali  I want to know about child custody  my wife carrying my daughter about 5yrs  and living along with her mother and she don’t want  to talk with my daughter if aim going her home to talk with my daughter she clams that I came to beat her know I want my daughter I miss my daughter so much as well as my family what should shall I do know  my case is 498a still running I given an petition for quash  but its pending status in high court  what should I do know 



Learning

 9 Replies

Rhonda Luna (HR)     03 January 2011

You can reach an arrangement regarding a shared parenting schedule or visting agreement where they have an understanding of how best action to divide the custody of the children. They will suggest you that what is the way to meet your child, to help and  to support your child.

Tajobsindia (Senior Partner )     03 January 2011

@ Author,

 

I have read your query.


A persons religion and S. 498a IPC complaint case apart if you are legal father of your daughter and wants to retain her custody (guardianship) and meanwhile wants to be granted visitation of your child to you and her grandparents then you should understand first the Guardianship Law of Muslims in hand and then file a S. 12 GWA (for visitation arrangements of child with father and grandparents – make yourself as first party and your parents as second and third party) and another Application under S. 10, 17 and S. 25 GWA (make yourself as first party and your parents as second and third party) in District Court under whose ordinary jurisdiction the child resides.


Here is brief Law (Muslim) in hand:-

 


Guardianship Under Muslim Law:


The source of law of guardianship and custody are certain verses in the Koran and a few ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak of the guardianship of the property of the minor, the guardianship of the person is a mere inference. We would discuss the law of guardianship of custody as under :

(a) Guardianship,

(b) Custody, and

(c) De facto guardian.

 


Classification of Guardianship

In Muslim law guardians fall under the following three categories:

(i) Natural guardians,

(ii) Testamentary guardians, and

(iii) Guardians appointed by the court.

 


Natural Guardians


In all schools of both the Sunnis and the Shias, the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father. The father's right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The father has the right to control the education and religion of minor children, and their upbringing and their movement. So long as the father is alive, he is the sole and supreme guardian of his minor children.

 


The father's right of guardianship extends only over his minor legitimate children. He is not entitled to guardianship or to custody of his minor illegitimate children.

 

In Muslim law, the mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody.

 


Among the Sunnis, the father is the only natural guardian of the minor children. After the death of the father, the guardianship passes on to the executor. Among the Shias, after the father, the guardianship belongs to the grandfather, even if the father has appointed an executor, the executor of the father becomes the guardian only in the absence of the grandfather. No other person can be natural guardian, not even the brother. In the absence of the grandfather, the guardianship belongs to the grandfather's executor, if any.

 


Testamentary Guardian


Among the Sunnis, the father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian. Among the Shias, the father's appointment of testamentary guardian is valid only if the grandfather is not alive. The grandfather, too, has the power of appointing a -testamentary guardian. No other person has any such power. Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her children. It is only in two cases in which the mother can appoint a testamentary guardian of her property of her minor children, first, when she has been appointed a general executrix by the will of the child's father, she can appoint an executor by her will; and secondly, she can appoint an executor in respect of her own property. which will devolve after her death on her children.

 


The mother can be appointed a testamentary, guardian or executrix by the father, or by the grandfather, whenever he can exercise this power. Among the Sunnis, the appointment of a non-Muslim mother as testamentary guardian is valid, but among the Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot be a guardian of the person as well as of. the property of a minor. It seems that the appointment of non'-Muslim fellow-subject (iiinmi) is valid, though it may be set aside by the kazi. According to the Malikis and the Shafii law, a zimmi can be a validly appointed testamentary guardian of the property of the minor, but not of the person of -the minor. The Shias also take the same view. It appears that when two persons are appointed as guardians, and one of them is disqualified, the other can act as guardian. A profligate, i.e., a person who bears in public walk of life a notoriously bad character, cannot be appointed as guardian:

 


Acceptance of the appointment of ...testamentary guardianship is necessary, though acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced save with the permission of the court.

 


Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal. A testamentary deposition made by a testator may be invalid, but appointment of the executor may be general or particular. The testator must have the capacity to make the will at the time when it was executed. This means that the fesladar should be major and of sound -mind, i.e., at the time of execution of the will, he should be in full possession of his senses.

 


The executor of the testamentary guardian is designated variously by Muslim lawgivers, indicating his position and powers. He is commonly called, wali or guardian. He is also called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal representative of the testator.

 


Guardian appointed by the Court-

On the failure of the natural . guardians and testamentary guardians, the kazi was entrusted with the power of appointment of guardian of a Muslim minor. Now the matter is governed by the Guardians and Wards Act, 1890. This Act applies to the appointment of guardians of all minors belonging to any community. The High Courts also have inherent powers of appointment of guardians, though the power is exercised very sparingly.

 


Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any person as guardian is conferred on the District Court. The District Court may appoint or declare any person as guardian of a minor child's person as well as property whenever it considers it necessary- for the welfare of the minor, taking into consideration the age, s*x, wishes of the child as well 'as the wishes of the parents and the personal law of the minor.

 

All the best. 

1 Like

Softskills (xyz)     05 March 2011

Mr. tajobsindia,

 

Greetings!!!

I would like to ask you if you are an Advocate or associated with law in any way. It is just a humble question.

Also would like to ask if the father is not fit for the child (girl child), he is an alcoholic , and was also hospitalized for his smoking and alcohol habit in a private hospital. The mother has filed a case against him in CAW cell of metal and physical torture as there was a lot of physical torture , like beating with belts, glass, trying to give electric shocks with imulsion rod, trying to push from the terrace, giving sleeping pills etc. The mother even has the MLC to prove the physical torture. Also the child has seen all the physical torture (with her mother) with her eyes, so do you think the father should get rights for the custody. Would the girl child be safe in that house? Soon the FIR would also be logged against the father, it is in the process.

 

Now the father has filed the custody case against the mother. Please suggest. The child's future will be dark, please help.

Regards

 

Tajobsindia (Senior Partner )     05 March 2011

@ Softskills....

1. Yes, I am into civil and criminal Family Law practice in
Delhi of roughly 8 years standing now.


2. I am not a Judge of any case appearing in LCI Family law forum hence I can say only one thing reading your second para briefs that in child Custody case even Hon'ble SC could not decline visitation and or custody rights of a child whose father is branded as Criminal as in reading down your entire second para inference so (which is called un-tried issues of facts and no court has pronounced any Judgment on it – right), hence without finding of the concerned Court atleast I will not be in a position to pronounce a Judgment on this case and anyhow it is duty of Court to pronounce Judgment and people like me just assist the Court.
Reasoning:
World over in child custody cases the “custodial parent” can come up with only three level of allegations against “non-custodial parent”;
FIRST level that the other parent has caused upon me extreme levels of torture / cruelties even tried to burn me down etc. etc.
SECOND level that the other parent is not having good conduct and lastly if these two (bald) allegations are not enough to distance off the non-custodial parent from the life of child then the; 
THIRD level the custodial parent alleges before Court is that of s*xual harassment nature and all these three allegations one can read with wide open eyes in various court records (citations of various Courts across India as an illustration).


3. However, other readers from Legal profession may try to give their verdict since you are asking me to give a verdict na and for the same I will reserve my say on other noble professionals verdict on this brief later on so till then have a nice day !!!
.

 

BTW, since you asked me a que. it would be fair upon we two that now you shall give me a opportunity to ask you a que. and the que. from me to you is – tell me in which stage you are from the above three stages?

1 Like

Softskills (xyz)     07 March 2011

tajobsindia,

Thank you so much for your response.

I actually could not get the second stage clearly, however can say that the physical torture is extremely high. He used to beat me from 10:30pm to 6 or 6:30pm at times or till the time he was not tired of beating me, not  burning but hitting me so bad that i might die, also tried to push me from the terrace and once he hit my nose with his head so badly that i started bleeding badly, was uncounsious after that. he also gave me 30-35 sleeping pills after which i was unconsious for a couple of days also.

 

As far as s*xual harrasement is concerned, he did not leave me in my last month of preganancy also. specially when you can not tolerate that bad smell of smoke and alcohol, i even used to puke many times while the intercourse. Even after my baby was born he used to come very late at night, was not even working then, used to come at 3am or even 5am at times. At 3am even you are asleep after the hard work of the whole day, you can't tolerate physical relation, however I had to.

I was at my parents place for 3-4months, then also he only used to come there at 1-1:30am , used to have physical relation with me and in the morning he used to go back.

He has done this all these years with me, if i used to resist, he used to beat me like hell.

 

Now the FIR has also logged, we got the copy, they are saying the action on FIR will be completed in 90 days.

Sir,

Could you please let me know your email id so that i feel more comfortable discussing my case with you.

Regards

Tajobsindia (Senior Partner )     07 March 2011

@ Softskills

It is a general observation;

1. On 5th. March you wrote your first post at 1026 hrs. I volunteered a reply by 1658 hrs. and assuming FIR was not lodged till 1026 hrs. (Sat.) and viola today (Mon.) on 7th. March  your 1213 hrs. post you are saying FIR is lodged and ATR will be done in 90 days ! I salute to such Police Force to act so fast and yet women writers here complain that police never helps a women...........


2. I know you will cover soon Level 2 as hinted in my first reply very soon which is what is expected from mother so I have patience in such matters......……


3
BTW under which all sections of IPC a FIR is lodged against your husband?


4. However, I am a Men's (read husbands) Rights Activist and it shall answer strong inability to exchange email ID's urge!.

 

1 Like

stanley (Freedom)     29 October 2012

Originally posted by : Softskills


tajobsindia,

Thank you so much for your response.

I actually could not get the second stage clearly, however can say that the physical torture is extremely high. He used to beat me from 10:30pm to 6 or 6:30pm at times or till the time he was not tired of beating me, not  burning but hitting me so bad that i might die, also tried to push me from the terrace and once he hit my nose with his head so badly that i started bleeding badly, was uncounsious after that. he also gave me 30-35 sleeping pills after which i was unconsious for a couple of days also.

I presume your husband was more than that of a heavy weight champion  or must have been above Hilter to torture you to such and extent for 8 hours meaning both of you never used to go to work .Even these people dont have the stamina to last for over an hour ...lol 

 
As far as s*xual harrasement is concerned, he did not leave me in my last month of preganancy also. specially when you can not tolerate that bad smell of smoke and alcohol, i even used to puke many times while the intercourse. Even after my baby was born he used to come very late at night, was not even working then, used to come at 3am or even 5am at times. At 3am even you are asleep after the hard work of the whole day, you can't tolerate physical relation, however I had to.I was at my parents place for 3-4months, then also he only used to come there at 1-1:30am , used to have physical relation with me and in the morning he used to go back.He has done this all these years with me, if i used to resist, he used to beat me like hell.

Suprisingly husband beating you in your own place  when your parents are presentt and nobody heard your vain attempts to rescue you .

Anyway husband will get visitation 
 


danish (Manager)     05 February 2014

Thanks Tajobs ,


God Bless you and you family , Amen

Juned A Harrased (Learner)     24 December 2014

So Many Thanks to Tajobs

I appreciate yours presence of Mind.


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