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a (w)     20 May 2013

Child custody

Dear Sirs

I'm in litigation for a matter under Crpc 125 and have further filed a revision in the session’s court to review the decision, as the maintenance amount awarded by MM was too high. The court has kindly accepted the application and proceedings in progress.

Here I’ve a question to ask and seek you valuable guidance, since my estranged wife is not buzzing for a mutual divorce and not allowing me to visit my child (9 Yrs old) either........

Would you advice me to file a separate case for the custody of child to put some pressure on her, as I read that article 29 mentions that a child need both the parents; also if you could advice what is the possibility of me getting the custody??

Your guidance in the matter will be highly appreciated.


Best regards


 2 Replies

Adv k . mahesh (advocate)     20 May 2013


The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’ (8). As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘(9). To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship. It was not to be, the Karnataka High Court held several years later that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’ (10). Again it was the sagacity of the Supreme Court hearing an appeal in the same matter which held that ‘we make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child’ (11). Despite the over- arching observations of the Supreme Court in the matter of child custody it is thus, often, the subjectivity of an individual judge which decides a case of child custody.

you have to file different case for child custody and it is known fact that children need both the parents but due to some unavoidable circumstances make husband and wife differ for some issues and here the children who are sufferering a lot

so file for the custoday of your child and show what all you can do for the welfare ofyour child

1 Like

Have a Heart Foundation (Sales & Mktng)     20 May 2013

You need to file a petition for Child Custody under Guardians and Wards Act. along with an injunction application for stay so that your wife does not leave the present jurisdiction without permission of court.


Kindly find herewith "Child Access & Custody Guidelines" approved by Bombay High Court for Guidance and Perusal. 

Attached File : 74058342 child access & custody guidelines- book.pdf downloaded: 90 times

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