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Arif Iqbal (Advocate)     04 February 2011

Custody of child,

Dear learned members,

Please enlighten me in respect of the problem described below:

1) H (husband) and W (wife) were legally married and as a result of the marriage C (male child, aged 8 yrs) was born.

2) Some years after C was born W went away to her paternal house alleging dowry tortures by H. Files cases u/s 498A IPC. 498A case is pending. Then she files a case u/s 406 IPC for recovery C. Court issues search warrant and C was taken  from A's custody and given to W. Thereafter 125 CrPC case was filed wherein A took the plea that he is not well earned and he depends on his father for living. Maintenance was allowed to W and C. Revision against the order is pending.

3) Now after about almost 1,1/2 years, H wants back the custody of C from W.


My query before the learned members is, what type of suit should A file now:

(a) whether A should opt for a civil suit for a declaration  that he his entitled to get possession of the child and for recovery of possession of the child from W? or

(b) whether he should file a suit under the gaurdianship and wards act?



 4 Replies

Adv Archana Deshmukh (Practicing Advocate)     04 February 2011

A petition under the Guardian and Wards Act should be filed.

2 Like

Adinath@Avinash Patil (advocate)     04 February 2011


2 Like

ADV Rajesh KASRIJA (ADVOCATE)     05 February 2011

A) This is not the suit of civil nature so he can not file a civil suit

B) Yes he should file a petition under guardians and wards act in the same petition if the child is understanding age court should ask from the child about his wish whether he want to stay with his mother or father. If any serious allegation against the mother or the father then court must see the benefits of the child.

Adv Rajesh Kasrija


1 Like

shankar (advocate)     06 February 2011

FILE  A PETITION UNDER GUARDIAN AND WARD ACT, court will decided the issue taking into consideration "welfare of the child"

1 Like

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