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Ravi (Consultant)     15 October 2013

Custody without custody order

Mother takes minor son and leave with her parents and go Abroad;

Father file for visitation and Custody in Lower court. years after Court dismiss the file without giving any order.

Father apply in HC and case is running.

Mother Apply for son passport using Lower court dismissed order, where it nowhere says Custody granted to her, as its Father petition order.

Still Passport Authority defend it, saying she has Custody and grant her Passport without Fathers NOC.


is that court order valid or she has custody.


 3 Replies

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 )     15 October 2013

The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’ (8). As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘

1 Like

Ravi (Consultant)     15 October 2013

Thank you for the detailed reply.

it means Passport Authority at fault, so i can include them in legal litigation.

Have a Heart Foundation (Sales & Mktng)     15 October 2013

Normally, Custody of a Child below 5 years is awarded to mothers under Guardians and Wards Act.

No Point in blaming passport authorities, the passport can be issued to minor child if the custodial parent gives them an Undertaking.

Incase if you do not want the child  to go abroad and have a case pending..

You can file injunction application to high court / family court requesting to grant stay order and restrict the custodial parent from removing the child from present Jurisdiction of court so that the child is not moved out without court's permission.

You can also pray that the passport of the child be deposited with court.

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