Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Viju75 (Hello)     16 February 2011

Child custody in Special marriage act


I am hindu and married with muslim girl who already had two girls. I am taking care of all the expenses and everything for their well being. Now, we have also got Son. As my wife always listen to my In-laws and they are agree to keep go girls as muslims becoz their father was muslim man and my son to hindu as i am hindu.


Problem is with my wife, she do not agree that he (our son) should be hindu, instead she wants to take my son to her parents palce and to make him muslim., which i do not agree.


I am doing good job with good salary, & my wife and/or my In-laws they are not earning good money and neigher they have their own house. I am educated & have done masters degree and she is not even graduate.


Even though discussing several times, she is not accepting this, infect she threatens me that she will run away with my child to her parents house and i will never get it back or if i will take him with me then she will suicide.


My son is 5 month old. I am stuck in this situation. i am not able to do my job too. I know, once she will run away with my kid, it is not easy to get him back because as per indian law, child custody of tender age always goes to mother.


Now i have following question...

1.     Can I get custody of my child based on religion practice  (as she is muslim and I am hindu and if she goes to her parents she or her parents will convert him to muslim)


2.     If she runs away with my child, then what I should do?


3.     Can I file a restraining order for mental torches and blackmailing if I take my kid with me then she will suicide?


4.     Is there any way I can save my son from being take him by her?


As I always says to her, that I am ready to stay out of bangalore, away from her family and live our life. But she is not at all willing to go out of bangalore, because she knows if she will go to other city, she will not be able to do anything what she can do in bangalore near to her parents house.


Also,I did marry with her with special marriage act, and I did not converted her to hindu. But since we relocated to bangalore near to her parents place, she got completely changed.


I am not sure how many educated men suffers from such uneducated and unethical people. I am not sure how indian law helps educate father to get his son/daughter.


Pls. advice me on this for further

Thank you,


 12 Replies

Ambika (NA)     16 February 2011

It is a very sad situation you are on. 

She cannot forcefully convert your child to her religion, rest assured. Wait for more legal opinions of the experts. It would be a mental torture that she will be inflicting on you. Your liberal attitude towards her son's religion would put you in very good light. You have to immediately consult some very good and honest advocate. 

May be the legal expert would talk to your wife and explain how her action would backfire on her, if she knows the implication of what she is doing, perhaps she will refrain from such actions.

Make a complain to Police about your threats to commit suicide, the reason for which she says she will commit suicide. It is not that you are instigating to commit suicide, it is her ignorance about the seriousness of trying to convert a child born of parents of mixed religion that is responsible. 

Wait for legal experts' opinion here on how to deal with her threats of suicide. 

And do not panic and be afraid....

However, do not harp on her uneducated status, because it was your choice to get married to her. You had already known that she is not as educated as you are. And do not make a reference to their monitory conditions because that also you had known before your marriage. 

Ambika (NA)     16 February 2011

*sad situation you are in 

*about her threat to commit suicide ( and not your threat to commit suicide) 

Jamai Of Law (propra)     16 February 2011

You and your wife got married under special marriage act !!!


Isn't it suggestive that you both did not have any religious preference while tieing the marital knot!!....Now one really can't impose one's own preference to other spouse.


Otherwise either one of you should have got converted before marriage and held the marriage as per the respective religious tradition and accorded the sanctity that you both preferred.


Your wife may also claim the same thing and Both are correct from individuals perspective!!!


Patriarchical view (or otherwise) can't have any standing in special marriage act based marriage especially inter-religious one. Neither of you can take unilateral ecision unless kid's sole custody as well as guardianship is granted by court to one parent.


At the time of birth what have you(BOTH) mentioned as his religion?


Its better to resolve differences and give more attension to welfare of kid and not religion.

1 Like


My dear Mr. Jamai of Law,

Some of your responses are extra-ordinarily humane and logical and invigorate the people who go through them.  Some times, I get inspired after readinng your responses, just like the above one.  Similarly, last week, in one of your responses, you compared the legally wedded wife as a permanent government employee with a relaxed attitude and a "live-in" wife as casual/ad-hoc/conttractual employee, whose services can be terminated at any point of time and who lives on tenter hooks.   This is one of the superb expressions by you and it shows your keen observation of the real situation. 

If any one has got the opportunity to go through the pleadings filed by the wife and husband in matrimonial courts and the pleadings filed by the employee and employer in labour tribunals, you will find a shocking similarities in those pleadings,  I mean that wife's pleadings are similar to employee and the husband's pleadinngs are similar to employer.  If comparison goes into deep, you see the employers are, at present, demanding the repeal of labour protective laws and penal provisions and vigorous amendments in Industrial Disputes Act just like some of the men are demanding the repeal  of Sectin 498-A, modification in maintenance laws and matrimonial laws etc. 

I hope I will see some of your postings like above in future.

Warm regards,

Prabhakar - Advocate

1 Like

nishant j kadam (owner)     16 February 2011

i got divorce frm my husbend now i want to apply for passpor for my children they r living with me, in my divorce jujment court didnt comment on custody isshu at all... now can i apply for my childs .....i got remerried also plzzz help me.

Viju75 (Hello)     18 February 2011

Hi Mr. Jamai for Law,

As per your legal opinion, I can’t impose my religion to my child. She also can’t impose her religion too on our new born child.

Now, adding facts to above discussion, she already had two daughters from her previous husband. He was Muslim. So my wife’s parents want both the daughters to be as Muslim because their father was a muslim man. Then why my child is getting dragged into be a Muslim? Question is how do I prove this to court?

At the time of our son’s birth, we have mentioned his religion as HINDU. She was also agreed to it. But because of her parent’s involvement, she listens more of them. So I am in catch 22 situation. I can’t even take my child to with me because he is just 4 months old. No court in world will give me custody of my child I know.

I cannot take him with me; neither can I see things they are doing with him.

Is there any way I can stop her parent’s involvement? Can I do something legally in this situation?

Please advise me.

Thank you

sheela subbarao (Advocate)     19 February 2011

You can get a restraint order from the court against your wife. But once you get into litigation your relationship with your wife will come to an end. Take the help of counselling and try.

What's in a name (Director )     19 February 2011

I understand your confusion. 

You need to decide. Fight tooth and nail , it is not your son's being Hindu or Muslim, it is the force that your in laws are using. Stop it legally as suggested by Sheela. Even otherwise this religion sword hanging on your son's head , your rlationship with your wife would go downhill. In such inter religious marrige , the children should not be compelled to follow any specific religion until they are 18 and choose what they really want to follow or want not to follow any religion at all. 

Sorry if I am disturbing your religious sentiments.

sheela subbarao (Advocate)     21 February 2011

No. You cannot give your present husband's name for the child who is from the first marriage. The natural father will remain for all purposes through out  the child's life. Supose your former husband is willing to give the child in adoption, you and your present husband can take the child in adoption and only then you can add up your present husband's name.

sheela subbarao (Advocate)     21 February 2011

Probably you cannot take the children out of the country, if your former husband has any objection to it. Now the rules have changed for getting the passport a sinle parent/ mother can apply for the same. If there is any objection from your former husband then you may have to seek permission from the court.

Ambika (NA)     21 February 2011

Sheela ji

There is a SC judgemnt --recent one--which allows a woman to take her child to Australia though her husband had objected to it. It is posted in LCI itself. 

The judgeemnt was like this: that a mother cannot be restrained from going with her child to pursue higher career. I will be posting it if I locate it or you can hunt for it .

I have not read the original query, my this reply is for one particuar comment on you rposting wherein you have stated that if father has objection, moither cannot take the child to another country. 

Samuel (Analyst)     15 March 2011


I feel so pity for you. First under all religious laws, mother is the first guardian and father is also a natural guardian. But father gets second place. in your situation and if your wife wants to take off your son to their parents, you can file for the custody of child by authenticating your income details and should satisfy the court to give good food, education and well care compared to your wife..

If this being so you will definetly win the case...

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