Civil Procedure Code (CPC)

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Nitish Banka (lawyer)     12 July 2018

Child custody to father?

Posted by: Nitish Banka  Categories: Uncategorized 


custody of minor child to father

Custody of minor child

Generally as per law i.e section 6 of Hindu minority and Guardianship act 1956.The custody of minor child is handed over to the mother if the child is below 5 years old.But there are some cases in which custody of minor child was handed over to her father.

How to have custody of minor child below 5 years if you are a father.

In Anil Kumar pradhan Vs.Smt madhabi Pradhan

It was held that though section 6 of Hindu minority and Guardianship act 1956.

The custody of minor child is handed over to the mother if the child is below 5 years old but in this judgement the court has said that welfare of child is more important.

Image result for custody of minor child to father

What is welfare of child?

Welfare of child cannot be measured by money or physical comfort alone,

tie of affection also cannot be disregarded .moral and ethical welfare is more important in deciding the custody of minor child.

if father was taking care of the child since birth and child has more affection towards father then even section 6 of Hindu minority and Guardianship act 1956 is not a bar.

held in kajal vs. Rajesh Rana

In Nil ratan Kundu Vs. Abhijit Kundu

The judgement of the child is also a relevant factor though final decision rest in child’s ordinary comfort, health, contentment education and intellectual development.

V. Ravi Chandran (Dr.) vs. Union of India and others in which a three-Judge Bench had categorically held,

that under no circumstance(2010)1 SCC 591 (2010) 1 SCC 174 can the principle of welfare of the child

be eroded and that a child can seek refuge under the parens patriae jurisdiction of the Court.

The court could go into the merits to determine as to where the permanent welfare lay

and ignore the order of the Foreign Court or treat the fact of removal of the child from another,

country as only one of the circumstances and the crucial question as to whether the court (in the country to which the child is removed)

would exercise the summary or elaborate procedure is to be determined according to the child

 3 Replies

Aman chawla (DELHI HIGH COURT ADVOCATE)     26 May 2018

Answer-1=Yes, Sir you can take your chile to Australia if he has Australian citizenship.

Answer-2= Yes, she can create hindrance if she has any order from the court regarding the custody of the child. If she doesn't have any such order then you can take the child to Australia.

Answer-3= Does your wife has Australian citizenship, if yes then you can file divorce there also or else you have to follow the provisions of section 19 of HMA 

Section 19 deals with the territorial jurisdiction of Petitions filed under the Act.

19. Court to which petition shall be presented: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction –

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

section 19 provides 5 options. It enables you to file the Divorce Petitions under any one of them as per your convenience.


Aman Chawla

Vijay Raj Mahajan (Advocate)     26 May 2018

You're Australian citizen and domiciled in Australia not India so for all purpose Hindu Marriage Act, 1955 will not apply to you so no question of section 19 HMA etc. Just don't worry you can always defend her divorce case if filled under Hindu Marriage Act,1955 by your wife in Indian court get it dismissed under Order 7 Rule 11 CPC. She will come to compromise for child custody only after you resist her divorce petition filled under the HMA. As far your Australian son is concerned, just inform your Australian High Commission about child abuse by your Indian wife on the minor child and help to get your son deported to Australia as soon as possible, you will get proper help from your High Commission in India. Don't worry, contact me for any legal help in India, check my profile here in this forum for my complete contact details. My own daughter, son in law and grandchildren are Australian citizens with OCI.

Have a Heart Foundation (Sales & Mktng)     02 February 2021

A Survey is being conducted for Reforms in functioning of Family Courts in India.

Separated Parents in Child Custody / Visitation disputes are requested to participate and fill the form in link below.

Our Children Deserve Better

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