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Rajesh (service)     31 July 2009

Custody of my Six and half year old daughter


My wife left me year ago as she had an extra marital. I have custody of my daughter who is six and half years old. After a year my wife has started threatening me for the custody of the daughter and the usual stuff 498..dowry..domestic violence... her family did not approve her extra marital...she is jobless and does not have any source of income but her brother is extremely rich. she is claiming the child on the basis of  financial support from her relatives and parents. My daughter is happily staying with me and our joint family. She is doing well in her studies and her overall development is excellent, My daughter is extremely bonded with me and has no inclination towards her mom as she was ill trated and beaten up badly by her mom in the past and also she remembers about her mother neglecting her and always talking over the phone to her boyfriend.  My question is

1) Whether under the above circumstances what are the chances of my wife getting the custody of the child?

2) All the false allegations that she threatens to  put about the dowry and domestic violence.how to counter it?

Please respond..



 1 Replies

Shaji Joseph (Lawyer)     01 August 2009

The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1980 (Section 17) or the Hindu Minority and guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and   head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sold determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration. 

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