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deendayal (service )     07 May 2013

Custody

what is the age for which a child can be  interviewed ( say for eg 5,8,10 yrs in india ) is there any hard and fast rule  when called for in case of child custody matters where consent of the child can be taken to decide the custody . 



Learning

 8 Replies

Adv Archana Deshmukh (Practicing Advocate)     07 May 2013

A child of any age can be interviewed by the court. There is no hard and fast rule or any bar to the court in respect of this. As far as giving importance to the opinion of the minor in deciding custody is concerned then, the court has to see that the child is old enough to form an intelligent preference which should be in favor of his welfare.

1 Like

Rajendra K Goyal (Advocate)     07 May 2013

Agreed with the Adv Archana.

Adv Archana Deshmukh (Practicing Advocate)     07 May 2013

Who is the devil's advocate? I did not understand..

Adv Archana Deshmukh (Practicing Advocate)     07 May 2013

And yes, intelligence is subjective and hence it is the subjective satisfaction of the court who interviews the child and it has to satisfy itself from the interaction with the child that whether the child has enuf intellect and understanding to form proper preferance or his preferance is based purely upon tutoring.

kasturi (Accountant)     07 May 2013

hi,

sorry for coming up in btw.. am NRI was living in dubai for last 10 yrs...in year 2011  dec. my husband harrased me a lot cancelled my passport and sent me back india. he kept my 2daughters with him the elder one is 11 years old and the younger is now 4 years old..after going to india last year i filed for 498/a case and DVC case... The status of 498/a is that a chargesheet and a non bailable warrant is issued against my husand and my in laws took and recall on health grounds..my husband is absconding and is not coming to india.. there is also LOC on him... now the police have requested the court for passport impounding..for which the date is posted for 16th july 2013...

and in DVC case he is called an exparte and last week i have file and affidavit and given evidence in court that he has actually harrassed me n is avoiding he court proceedures... my elder kid also spoke to judge over the phone that she wants to be with mom... the judge has taken the evidance and posted for orders for this may 20th ... kindly let me know if the case is going gud... and will i get my kids in my hands!! and what more should i do to bring him to india...  he has trortued me a lot for past 15 years... i really took all that for the sake of kids and that too gals!! but now when they are suffering what is the using of taking his harrasment..i want him to be punished harshly...he is also living with a lady.. and had been to thailland for vacation for which my elder daughetr is the evidence.. they stayed in same room..for 5 days... to prove his adultery is this enough??? PLEASE help me !!

Adv k . mahesh (advocate)     08 May 2013

 

no where the legal system has mentioned about the interviews procedure followed by the court at what age but some itneresting facts remains the same 

Section 26 of the Hindu Marriage Act, 1995 deals with the custody of children. The matrimonial court can grant the custody of the child, as an interim measure, in a case pending before it.

The Section gives the appropriate court (usually the Court of Additional District Judge) ample power, to issue directions, or pass orders, during the pendency of the proceedings, or at any time thereafter, for the custody, maintenance and education of minor children of the couple who are partner to the proceedings.

The wishes of the children, wherever it is possible to do so, are always kept in mind by the courts, while passing orders in connection with the custody of the minor children. The power to make such orders includes the power to revoke, suspend or vary them and includes interim orders as well as final orders.

Property of Minor Children:
This section does not speak about the property of the minor children. In fact, the provisions of this section can not be interpreted to affect the ordinary law of guardianship of minor children. This section does not speak about the property of the minor children; it speaks only of their custody, maintenance, and education, or in other words the guardianship of their persons.

The factors, which the court keeps in mind, while deciding the question of the minor children:
There are of course various factors, which have to be kept in mind by the courts deciding the question of the custody of the minor children. The High Court of Himachal Pradesh observed that “The welfare of the minor is the crucial thing to be regarded by the court”. (In Paraminder Lal Sarin Vs Suma Lata, AIR 1984 HP1)

The orders passed by the competent court in regard to the custody of the children, pending disposal of the case, are not final. These are interim orders. They are subject to change, depending upon the circumstances of the case. The court has very wide powers to change, vary or alter its earlier order in case the need arises.

Procedure followed by the courts while deciding the custody of minor children:
The normal procedure adopted by the courts is very simple. The mother invariably gets the custody of the child, if the child is below the age of five years. After the child has crossed the age of five, the custody of the male child goes to the father, and custody of female goes to the mother. But the court has ample powers to deviate from the normal procedure, taking into consideration the facts and circumstances of each case brought before it.

A. V. Venkatakrishnaiah Vs S A Sathyakumar:
The father had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The step – motherly treatment is proverbial in this country. In the court also minor refused to go to his father. The father was likely to have not much time left to look after his son, who would be left with his step mother. Taking all the facts into consideration, the Karnataka High Court held that the welfare of the child was not secure in his father’s house, and its custody was refused to him though being an officer in a Bank, he was in a position to look after the child well and had made several deposits in the bank in the name of the child. Therefore the petition of the father for the custody of the child was, dismissed by the Hon’ble High Court.

 

this para clearly makes very sense 

pun (eng)     10 May 2013

@ Adv Archana

"A child of any age can be interviewed by the court. There is no hard and fast rule or any bar to the court in respect of this. As far as giving importance to the opinion of the minor in deciding custody is concerned then, the court has to see that the child is old enough to form an intelligent preference which should be in favor of his welfare."

does the court think that a child of age about 4.5 year is old enough to form an intelligent preference when there are full chance of ear posining.

Adv Archana Deshmukh (Practicing Advocate)     10 May 2013

@ pun,

The custody of a minor below the age of 5 is normally given to the mother as per law. However,  no hard and fast rule can be applied.in any case for custody.  Generally speaking, nothing  depends wholely upon the wishes of the child nor the court can completely ignore it bcoz children are human beings and cannot be treated as animals or chattles. Everything has to be seen and dealt with as per the circumstances in an individual case and custody is given having regard to what suits best to the interest of the minor.


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