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Jay (NA)     23 April 2016

Girl child custody

Dear Expert,


To a great extent I am willing to get my daughter’s (3 years old) custody. I have already applied for Child custody under HMA section 26 along with my divorce petition section 13.


As per HMGA act section 6(a) “custody of a minor child shall ordinarily be with mother.” The law says ordinarily not mandatorily however mostly it is misquoted which impacts willing and custody needing father. As per HMGA section 13(1) “Welfare of minor to be paramount consideration.” But, in the family court, it is very difficult to get the time for arguments under HMA or HMGA petition since most of the times are consumed in cancelling and custodial hearing delays.


In the circumstances of separate petition under “Guardians and Wards Act, 1890” which section would be recommendable to apply for child custody? Please advice. Thanks in advance.


 6 Replies


You want daughter but not wife, are you forgetting that daughter carries her blood also?  It is a little devil in guise of angel if you consider your wife as one.


Your G&W applicatoin has no logic.


You can simply state that your wife is not in position to provide good life to your kid, hence ask court for custody u/s 13, 1 of HMGA, as welfare of kid is of paramount interest.  To prove that it is difficult, but not impossible, you can however with help of good criminal lawyer project your wife as villainous woman who is incapable of providing support to the kid and ask custody, but since kid is 3, you forget the issue now, try when kid turns 5, till that time maintain cordial relations with kid and wife, so that kid will tell when asked that it will prefer to stay with u than the mother.


If u got guts, just kidnap kid, it is not punishable under law provided ur original father.


All in all, you need to have strong mind to take decisions here.  If you could not have adjusted with wife it was wrong on your part to have s*x wihtout protection and produce kid, now simply in all this kid will be torn. You hurried, now its time to take strong and adamant decision. 

Vijay Raj Mahajan (Advocate)     23 April 2016

You can file Petition under section 25 read with section 10 and 12 of the Guardians and Wards Act, 1890 for the custody of the minor girl child that will be a separate matter apart from the divorce proceedings in the Family Court.

The decision of divorce shall have no bearing on this petition.

The paramount consideration is welfare of the child for deciding the custody of the child and both biological parents are natural guardians of the child can claim it against the other. The court has to decide the best person to get the physical custody of the minor child. Yes the younger child is preferred to be allowed to mother to hold the physical custody as the attachment of the small child is more to the mother than the father, but that doesn't make the father right of seek custody or visitation for child meaningless.

saravanan s (legal advisor)     23 April 2016

since the child is only 3 years old the custody wont be given to you and you need to wait for two more years till the child turns five.even after that the child wish will be taken into account while deciding the custody

Jay (NA)     23 April 2016

My daughter is hope of my life. I will never give up to get custody before she attains the age of 5 years. Thanks for sharing input for possible options.


In the point of “You want daughter but not wife…” every common man wants wife, kid and happy family but he doesn’t have dare to want Terrorists in form of wife. Check the NCRB report and Supreme Court Judgment.

Dr J C Vashista (Advocate)     24 April 2016

@Jay, Apply u/s 25 G&W Act for custody of minor with an application for visitation rights so that the baby is very much affectionate towards you till the case is decided. You/your counsel has to present the case in such a manner that you would be better guardian of minor in comparison to your wife and the interest of child would be far better than when she is with her mother. I fully agree with experts.

S K KARNjhc (Legal Adviser)     27 April 2016

I don't think you need more guidance to develop your requirement Or if not sufficient you should consult local lawyer.


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