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J. Gopinath (Freelance writer)     08 September 2009

Interim Custody of Child

My marriage took place in Feb 2004 has survived only for 5 months. She is Msc and I am BCom.  My wife is a cantankerous, egocentric, cynic person and  suspected to be a Narcissist. She deserted her matrimonial house, being dissatisfied with my qualification, career and earning. She was 5 months pregnant when she left.  Now our Son is 4 Y and 10 M, under the custody of his mother.  I am petitioner in Main OP (divorce) on the grounds of cruelty and IA petition for Interim Custody (19.02.2007)for Child. In March 2009, Wife filed HMOP for interim maintenance and the Judge is keen on disposing that petition keeping aside my petitions. In case I am ordered to pay maintenance to my son , would that not affect the prospects of my interim custody application. (I believe, No maintenance to child in case of his being under the custody of father) Can I Put forward the argument that she does not have a healthy mind or earning potential (as stated in her HMOP petition, though not true) and therefore has no right to keep custody of the child?


 10 Replies

B.S MANJUNATH (ADVOCATES)     08 September 2009

The child is four year old. The paramount consideration is the welfare of the child. At this stage the child should have congenial atmoshere to grow. It may not be appropriate to disturb the mind of the child.

In so far as the demand for maintainence is concerned if it is pleaded that your wife does not have sufficient income to maintain the child, it may operate in your favor later. But not now. The result of maintainence application may not have bearing at this stage on the merits of the case.

Kamal Grover (Advocate High Court Chandigarh M:09814110005     08 September 2009

Mr.Manjunath is right.

J. Gopinath (Freelance writer)     09 September 2009


As regards my IA for Interim custody for child, Would the court not take into account the mother's attitude and behaviour (which will be proved if she is subjected to the diagnosis fo a Psychiatrist) ?  Whether the preference of  my son (if he wishes to live with me) will be taken into account considering his age 4 Y 10 M? 

B.S MANJUNATH (ADVOCATES)     10 September 2009

From the facts mentioned herein above by you, there is no such pleading. In such matters there is heavy burden on courts to exercise parental jurisdiction. We should provide true facts, so that the matter is not dealt with misplaced emotions. Your concern is deeply appreciated and respected. But what is good for the child is most important. Patience and wisdom will help to deal the matter with maturity. Impulsive decisions and demands cannot take such matters to decesions which enhance child's welfare. You  are father and person opposite to you is the child's mother. Both are equally interested in the child.

J. Gopinath (Freelance writer)     10 September 2009

Thank you very much sir for your time and advise. I do agree with you that the paramount consideration is the welfare of the child.  But, the mother of the child is not even on talking terms with me for 5 years now nor extends full cooperation in the upbringing.  I never wanted to separate my son from his mother. But it is not the same with her. All I want is to keep custody of our son every Sat and Sun and that she will drop him at my residence and I will drop him back the next day eve.  (We are at 25 km distance) My IA is pending for 2 years now and how long should I wait with patience and wisdom to get justice. My son is deprived of the love, care, attention of his beloved father, for no fault of him, for almost 5 years. Please let me know

(a) if my expectation is reasonable and justified ;

(b)  the rights of our son as provided in our constution, in this regard.

B.S MANJUNATH (ADVOCATES)     11 September 2009

Persuade your application for your visiting rights for weekends, without precipitating the matter. The child is to small to miss the emotion which your apprehending. Your are not wrong with what ever you have expressed. But, the important aspect is your marriage has suffered set back. In that child should be not be tossed. In the formative stage of child's mind congenial atmoshere has better prospects of child getting back to father, than generating hotility in the mind of the child by the irresponsible acts of elders. If you expect court to exercise parental jurisdiction, than real father has to raise to the occasion by exhibiting fatherhood and make it easier for judges and advocates dealing the matter.

valentine (Advocate)     10 October 2009

As per the guardian and ward Act, the custody of the child remains with the mother for the first five years and only after 5 years the husband can claim the custody. Even after that, the welfare of the child remains of paramount importance. Generally speaking, child remains safe and feels emotionally secured under the delicate care of the mother. In normal cases, mother breastfeed the child, understands the requirements of the child. It is natural to every mother to know the early childhood problems. She understands all problems in child upbringing. Even the fiercest animal like a trigress or a linoness loves her cubs and would sacrifice her life if so required. This logic is also applied to the custody. Please recollect the custody tangle betweem famous actress Karishma Kapoor and her husband and you will realise the situation. In your case, you have to prove all the wrongs in your wife for getting the custody. You have to prove that there are some defects in her character/build up which may affect the furture of the child.


Kamal Grover (Advocate High Court Chandigarh M:09814110005     12 October 2009

If mind of mother is not well then you can get custody else you can get visit right to meet your son on every saturday or sunday or as you will demand or any time when u want without any condition.


sandip deb (cmo)     30 August 2010

Sir, we had an intercommunity marriage in 1992. I am a hindu and she is christian. as there was no issue we adopted a a girl infant in 2004 who is now 7 year old. Due to constant mental harrassement and threat from my wife I left the shared household( registered in my slole name)' in Dec'08 and started living in my cousin's flat in the same city alone. Subsequently she filed a false DV case in feb'09, which granted no protection order as pleaded by her, but granted the custody of the child to her without any mention of visitation rights(probably as I am the owner of the shared household Iam supposedly free  to go any time to visit my child).The DV court order is under appeal by me in Session's Court. In the mean time my application for divorce under Special Marriage Act on the ground of cruelty has been admitted by the Family Court, whrerin I also applied for child's custody U/S 38 of the Special marriage Act. The pleadings are over and on our application for interim visitation right the Court has granted me unhindered visit to my shared household and that I can take the child out for 2 hours on afaridays. MY plea to keep the child overnight was strongly opposed by the opposite side.I am in the process of filing Custody application in the Guardian Court now.

 The point is that although my wife is a practising christian we adopted the child under Hindu Minorities and Adopton Avt, 1956. My wife had consented to it and accepted undrer affidavit that she is a Hindu by religion and hence fit to give her consent. Certified copy of the said affidavit is in my opinion. After 4 years of the same we admitted the child in school as Hindu(mother's signature is there in the admission form). Now in her written statement to my divorce petition She had repeatedly asserted the she is and was a Christian , which according to me automatcally disqualifies her as an adopting/ consenting party to adoption under Hindu Minorities and Adoption Act ,thus having no right over the child. I shall be extremely grateful if some one can enlighten me with their valuable suggestions regarding this very sensitive situation involving child custody vis-a-vis parental religion and how best to draft my application. Dr. Sandip.

nirmala (xy)     23 October 2010

Hi, I stay in mumbai.Had a mutual consent divorce from Cochin in 2006, we last stayed there together,ex- husband still lives there.I did not take alimony or maintenance,all expenses of child are borne by me. Father has visitation rights --can take child with him during vacations.
As per agreement,Father was supposed to invest money in child's name in such a way that it totals 20 lacs by the time she is 18 & give proof every march.Till date, he hasn't given any such documents.
But child does not want to go with him.she is 10 years old.He keeps threatening her he will not send her back & she is terrified.Also tells her he will harm her mother if she doesn't listen to him.Many a times, does not take her on dates pre agreed without informing.he stays alone & she does not enjoy her stay there, he doesn't plan any outstations for her.She hasn't gone with him for 1 year, he didn't ask for taking her either.
Now, he has filed a petition in Cochin family court for interim custody of child.I would like to know:
1.If & how can the case be transferred to bombay as I am working & bearing complete expenses of child.
2. If i can file a case against the father in Mumbai.
3. Is there any case law like this where only local visiting is allowed & not going out of town with father.(to his city)
Pls answer with case laws & references as i have to file reply in a week.



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