Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Subhomoy Das (Retail Manager)     07 July 2011

Law

WHAT IS THE DIFFERENCE BETWEEN  CrPC u/s 498A and DOMESTIC VIOLENCE ACT. ARE BOTH OF THEM SAME.

CAN A FATHER FILE IN THE COURT FOR CUSTODY OF HIS 5 MONTH OLD BABY AS MOTHER OF THE BABY IS STAYING IN HER PARENTS HOUSE AND NOT TAKING PROPER CARE OF THE BABY.

IN THE ABSENCE OF MOTHER DOES THE FATHER OF A CHILD HAVE RIGHT TO KEEP HIS CHILD WITH HIM OR DOES THE GRANDPARENTS (MOTHERS PARENTS) HAVE MORE LEGAL RIGHT TO KEEP THE CHILD THAN TO HIS FATHER.

Pleae Advice.



Learning

 3 Replies

pratik (self working)     07 July 2011

good question but also have a look at section 6 of the Hindu Minority & Guardinship Act, 

6. Natural guardians of a Hindu Minor. The natural guardians of a Hindu minor, in respect of the minor' s person as well as in respect of the minor' s property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl- the father. and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father; (c) in the case of a married girl- the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.- In this section, the expressions" father" and" mother" do not include a step- father and a step- mother.

Also there are many judgment give of ur related query let see what are LD members has to say.


Also ur question is not clear as u have mentioned that mother is staying in MOTHER OF THE BABY IS STAYING IN HER PARENTS HOUSE 

& IN THE ABSENCE OF MOTHER means the mother is working somewere else or if she's is staying in this parent's house than who can she be absent?

 

 

Subhomoy Das (Retail Manager)     07 July 2011

Ur question is not clear as u have mentioned that mother is staying in MOTHER OF THE BABY IS STAYING IN HER PARENTS HOUSE & IN THE ABSENCE OF MOTHER means the mother is working somewere else or if she's is staying in this parent's house than who can she be absent?

 

Mother is staying at her parents house with the baby and the mother is working. She is out for her service almost for 14 hrs every day. she hardly able to devote 8 hrs for the baby including her own rest hrs. So in that way she is not taking proper care of her child who is just 5 months old.

In the absence of mother ( in case of death) does the parents of the mother become a legal gaurdian of the child as grandparents or does the father of the child becomes a legal gaurdian of the child.

Pls advice

Saurabh..V (Law Consultant)     08 July 2011

@pratik

 

It was very interesting for me to read into S.6(c) HMG Act.

 

It clearly says that for a married girl, her husband is the guardian. It does not state any age limitation on this. So it means, when a child is begotten, then also she stays in the guardianship of her husband. And this status continues till her death. I draw inference from S.125CrPC for maintenance of wife, which is complimentary to the subject section because a person who is dependant on someone, should have a right to be maintained by the other.

 

But now, surprisingly we have a landmark judgment of Supreme Court of India, which states, that S.6(a)HMG Act, also include mother and the words after father does not says thas only after death of the father but even before that if father is not capable of maintaining the child, the mother would be the natura guardian. This judgment was pronounced and based on Art.14 & Art.15 of Constitution of India, on the name of gender equality and women empowerment and liberation.

 

Can you now understand that how confusing the situation is? A lady who is a dependant for her needs on a man, and that man is her guardian, but during thsi same status, she can be the guardian to another!!

How can a person be dependant on a person who herself is dependant?? How can we ensure that this dependant is capable of taking-care of the child?

 

Certainly, we live in a country full of diversity and confused law-makers.

 

//peace

/Saurabh..V


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Related Threads


Loading