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(Guest)

Child custody application- which section

Hi,

 

I wanted to take your opinion on how should I file my case for my child custody and visitation rights

 

Here are a few facts.

 

Child is five years old make and has been living with her mother for last two years.  During these two years  I have made several attempts to make my wife agree to send him to a good school but she did not.  She has also been doing everything possible to dissallow me and my family meet my son.

 

I am giving my petition for custody based on my better educational background, access to better facilities and better location( Bangalore) which will ensure beeter welfare of the childres.

 

So shall I apply under 26 of HMA or section 12 of  GWA?

 

Regards,

Avinash



 12 Replies

Nu.Delhi.Law.Fora. (Advocate-on-Record Supreme Court of India)     01 October 2010

Dear Querist,

 

Please be advised that for obtaining custody of your minor child, you would need to file a petition for child custody under Section 12 of  G&W Act.

Trust this would suffice.

 

Rabin Majumder

Advocate & Attorney

For Nu.Delhi.LAw.Fora.


(Guest)

Section 9 of Guardians and Wards Act.

Tajobsindia (Senior Partner )     02 October 2010

 

Originally posted by :BONDGAL2010

"


Section 9 of Guardians and Wards Act.

"


Originally posted by :Advocate Rabin Majumder, Delhi

"

Dear Querist, 

Please be advised that for obtaining custody of your minor child, you would need to file a petition for child custody under Section 12 of  G&W Act.

Trust this would suffice.

Rabin Majumder
Advocate & Attorney
For Nu.Delhi.LAw.Fora.

"

         

Nah, <bondgirl> and <Adv. Robin Majumdar, Delhi>


The que. of Author is simple and straight: Which is the right Section to use to file  Visitation and for Custody of child and by advising him to use S. 9 GWA and or S. 12 GWA both of you have wrongly advised him.


My Reasoning:
 
Starting with

S. 9 HMGA

1a. Well during the British period, testamentary powers were conferred on Hindus, and the testamentary Guardians also came into existence. It was father's prerogative to appoint testamentary guardians. By appointing a testamentary guardian the father could exclude the mother from her natural guardianship of the children after his death.


1b. Under the Hindu Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now been conferred on both parents.' The father may appoint a testamentary guardian but if mother survives him, his testamentary appointment will be ineffective and the mother will be the natural guardian. If mother appoints testamentary guardian, her appointee will become the testamentary guardian and father's appointment will continue to be ineffective. If mother does not appoint, father's appointee will become the guardian.


1c. From above few corallites pops that are;

(i) It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children even when he is entitled to act as their natural guardian, as S. 9(1) HMGA confers testamentary power on him in respect of legitimate children only.

(ii) In respect of illegitimate children, S. 9(4) HMGA confers such power on the mother alone.


1d. Under S. 9, HMGA, testamentary guardian can be appointed only by a will.

 

S.
9 GWA

“Court having jurisdiction to entertain application
.- (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

If the application is with respect of the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in the place where he has property.

If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly on conveniently by any other District Court having jurisdiction.”



S. 12 GWA

12. Power to make interlocutory order for production of minor and interim protection of person and property.- (1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.



Addendum reasoning:

3.
Now, if you say you took his que. to be of Jurisdiction question then be noted that S. 9 GWA comes into play only when challenged by a party then it is read down with S. 10 and S. 7 (i & ii) R/w S. 8 both of FCA, 1984. The author lives in Bangalore and Bangalore has a Family Courts even if he files either using S. 26 HMA and/or using S. 25, S. 10, S. 17 and S. 12 all of GWA both independent Suits will be dismissed at admission stage itself due to lack of Jurisdiction since it is not clear from the post where the child was born and brought up first 180 days!


Here are question to Author from me:

Q 1: Where the child was born?

Q 2: Where the child ordinarily resided after birth?

Q 3: Since the year mother left matrimonial home along with child and till date where the child is ordinarily residing at?


Cities names please in above !


Kindly answer these three questions first to set the Jurisdiction issue then correct usage of Section for Interim Visitation followed by contested Custody Suit for custody of child could be advised to you.


A message to Mr. Robin Majumdar:

1. I noticed from last 1 week you advertised your firm’s name to two queries and even passed cell no. with name of another Advocate to a querist for Dwarka Court whereas your above advise of Section 12 GWA is not right advise. Kindly give correct advise first then look for commercial business from public looking for legal professionals here.

1 Like

(Guest)

tajobsindia

 

Thank you.   Here are answers of  question you asked

Q 1: Where the child was born?

 

Ans -- Mission  Vijeo, California, USA



Q 2: Where the child ordinarily resided after birth?

 

Ans -- With both of us. Primarily at Bettendorf, Iowa, USA.  Sometimes in Patna. India.



Q 3: Since the year mother left matrimonial home along with child and till date where the child is ordinarily residing at?

 

Ans -- Muzaffarpur, Bihar

 

 

Tajobsindia (Senior Partner )     02 October 2010

Author,

Thank you for sharing with us the imp. leads on presented briefs.


1. Reviewing your above reply, first the case can only be filed at
Bihar - Ordinary Civil District Court. Reasoning being that the Child “ordinary residence of” is shown to be that of in Bihar since removal from "ordinary residence". As you are aware “child residence” is totally different ball game than parents or temp. custodial guardian so let us not confuse with civil / criminal courts “residence” to set jurisdiction issues in child custody matters here.


2. Now you need to check with Bihar's Civil District Court if they have a regular Matrimonial Court OR they are functioning under a Family Court established under FCA, 1984 based on Circular from Appellate Court that is the HC under which this District Court functions. Reasoning being that if there is only Matrimonial Court and in the absence of any activity under S. 9 till S. 13 under HMA The Act by eithe rof the parties a standalone S. 26 HMA application for visitation (interim R/w S. 151 CPC) as well as for Custody of child will not sustain the test. Added reasoning here is that if there is a Family Court established / funstioning under this
District Civil Court then a standalone S. 26 HMA sustains even int he absence of S. 9 till S. 13 HMA activity by wither spouse in same District Court and for which I can share catena of (citations) reasoning given by various ld. HC’s and or on how a stand alone S. 26 HMA Application can sustain in the absence of no activity by either spouse under HMA !


3. Once you may throw clarity on
Matrimonial Court and or Family Court out of which is the one which functions there then I may tell you the exact sections to use the two Applications supported by Affidavits. Reasoning here is that base don harmonious read down of above para 2 clarity comes which Section to use and among the two Special Acts which is more powerful and wide etc.


Added questions from me (purely depends if you do not wish to disclose in open forum then you may send a PM):

Q 1: Are there any pending Criminal Case in wife’s District Court against you?


Q 2: Do you have any life and limb threat to attend Court cases in
Bihar?


Q 3: Do you have any issues if wife with child travels to
Bangalore based on conveyance paid by you? 

Q 4: Is there any activity under S. 9 till S. 13 HMA The Act by either parent in Bihar? here activity means simply is there any pending application by either party?

2 Like

(Guest)

Taj

Thank you.  Now things are starting to get clear to me.

 

To answer whether there is seperate matrimonial  court in Bihar or they function   under family court . Answer is -   In Bihar there is no seperate matrimonial court, they function under family court.

Now comming to specific question you asked

Q 1: Are there any pending Criminal Case in wife’s District Court against you?

 

Not till now, as far as  I know.


Q 2: Do you have any life and limb threat to attend Court cases in Bihar
?

 

No




Q 3: Do you have any issues if wife with child travels to
Bangalore based on conveyance paid by you? 

 

No



Q 4: Is there any activity under S. 9 till S. 13 HMA The Act by either parent in Bihar? here activity means simply is there any pending application by either party

 

Yes. there is a pending divorce case under section 13 of HMA

HK_Jain... (498a Fighter)     25 March 2012

Originally posted by :Tajobsindia
"
Author,

Thank you for sharing with us the imp. leads on presented briefs.


1. Reviewing your above reply, first the case can only be filed at Bihar - Ordinary Civil District Court. Reasoning being that the Child “ordinary residence of” is shown to be that of in Bihar since removal from "ordinary residence". As you are aware “child residence” is totally different ball game than parents or temp. custodial guardian so let us not confuse with civil / criminal courts “residence” to set jurisdiction issues in child custody matters here.


2. Now you need to check with Bihar's Civil District Court if they have a regular Matrimonial Court OR they are functioning under a Family Court established under FCA, 1984 based on Circular from Appellate Court that is the HC under which this District Court functions. Reasoning being that if there is only Matrimonial Court and in the absence of any activity under S. 9 till S. 13 under HMA The Act by eithe rof the parties a standalone S. 26 HMA application for visitation (interim R/w S. 151 CPC) as well as for Custody of child will not sustain the test. Added reasoning here is that if there is a Family Court established / funstioning under this District Civil Court then a standalone S. 26 HMA sustains even int he absence of S. 9 till S. 13 HMA activity by wither spouse in same District Court and for which I can share catena of (citations) reasoning given by various ld. HC’s and or on how a stand alone S. 26 HMA Application can sustain in the absence of no activity by either spouse under HMA !


3. Once you may throw clarity on Matrimonial Court and or Family Court out of which is the one which functions there then I may tell you the exact sections to use the two Applications supported by Affidavits. Reasoning here is that base don harmonious read down of above para 2 clarity comes which Section to use and among the two Special Acts which is more powerful and wide etc.


Added questions from me (purely depends if you do not wish to disclose in open forum then you may send a PM):

Q 1: Are there any pending Criminal Case in wife’s District Court against you?


Q 2: Do you have any life and limb threat to attend Court cases in Bihar?


Q 3: Do you have any issues if wife with child travels to Bangalore based on conveyance paid by you? 

Q 4: Is there any activity under S. 9 till S. 13 HMA The Act by either parent in Bihar? here activity means simply is there any pending application by either party?
"

threeleafe (awaited)     25 March 2012

Order has been passed in this case. Huband has been given the custody.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     30 March 2012

Congratulations.

 

Take proper care of the child.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

tejeshwar.d.c (no)     13 November 2014

What About sec.7 and sec.17 of  guradians and ward act

Ellappan V   11 December 2017

We need urgently for Child Custody Petition format 

My email id is "mailtoellappan@gmail.com" AND "ellappanassociates@gmail.com"

Thanks 

Have a Heart Foundation (Sales & Mktng)     02 February 2021

A Survey is being conducted for Reforms in functioning of Family Courts in India.

Separated Parents in Child Custody / Visitation disputes are requested to participate and fill the form in link below. Our Children Deserve Better

https://docs.google.com/forms/d/e/1FAIpQLSfb-7gq8lVMUed9PQqkMV3gYCb5TC5WgH5wMKV0uaJB-Rc9yQ/viewform


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