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Shobhit Banerjee   25 April 2020

Child Custody And Visitation Rights of Husband Before Divorce

Facts in short -

1. Family Belongs to Sikh Religion.

2. Wife left matrimonial home of husband with the only child, a daughter of 3 years and started living with her parents.

3. False 498a, DV cases pressed on the Husband. Husbands out in Bail.

4. Husband wants Custody of child or at least Visitation Rights before Divorce, as divorce has not been yet filed and is likely to take much time.

5. Under which section/act can Husband approach the court for custody or visitation rights?

6. Is it possible for Husband to bring the child back to his home, even for a day Or so.

Thanks for your help in advance.


 5 Replies

Siddhartha Mishra (Director)     25 April 2020

under guardian and ward act or he may seek writ of habeas corpus in high court
1 Like

Shobhit Banerjee   25 April 2020

Kindly guide us as to which section specifically from the Guardianship and ward act should we approach the Court.

Karishma Yadav   26 April 2020


Thankyou for your question.

Custody of a child is decided by considering the welfare of the child, as held in the case of Sheoli Hati v. Somnath Das. Parents seeking custody has to prove that interest and welfare of the child shall be protected by them better than the opposite party.

A suit for Visitation Rights can be filed, which will be right of permanent meeting of the minor child.

A Writ of Habeas Corpus can be filed in the Supreme Court under Article 32 or in the High Court under Article 226 of the Indian Constitution.

Under Section 26 of Hindu Marriage Act, the court is authorized to pass interim orders in any proceeding under the Act with respect to custody maintenance, and education of minor children. This section can also revoke, suspend or vary previously passed orders.

Guardianship and Wards act, 1890 also talks about guardianship and custody of minor children.

It was held in the case of Gaurav Nagpal v. Sumedha Nagpal that children are not mere chattels nor are they toys for parents. There has to be a proper balance between requirements of the minor children and the rights of the respective parents.  

Hope this answers your question.



Karishma Yadav

1 Like

Dr J C Vashista (Advocate)     26 April 2020

Move an application under section 12 of the Guardians & Wards Act, 1890 for grant of visitation rights to father.

1 Like

LIYANA SHAJI   26 April 2020

Good evening,

Since the matter is related to custody of the child and visitation rights, It was held in Mrs. Deepika Chopra Garg and Another vs. Nikhil Garg that while determining the question as to which parent should be given the care and control of a child, the first factor considered is the welfare and interest of the child and this has to be considered in the background of the relevant facts and circumstances.

Matters related to child custody and custody petition are dealt under :

  1. Guardians and Wards Act, 1890.
  2. Section 26, Hindu Marriage Act.
  3. Article 32 and 226 of the Constitution of India.
  • Therefore, under Section 26 of the Hindu Marriage Act,1890 the court can pass interim orders for the custody, maintenance and education of minor children, consistently with their wishes.
  • A writ of Habeas Corpus can be filed under Art 32 and Art 226 of the Indian Constitution.
  • An application for visitation rights can also be filed.


Various links for further reference:




Hope this answers your query.


Liyana Shaji

1 Like

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