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Rohit D (Employed)     23 May 2013

Mutual divorce and custody of children

Respected Experts,

I am a resident of Mumbai and looking for an advice from the experts on my issue.

I am bachelor and my age is 29 and i earn decent money from doing various jobs like filing the returns  for my clients, helping to create a passport etc. I am taking care of my unemployed married sister,  who has 2 kids and is seeking to get divorced on mutual understanding with her husband who has been cruel to all three of them hence she is staying with us. Now, he is ready to pay some amount in cash. 

So, my question is what happens to the kids (one daughter - age 15yrs and son - age 10yrs) of my sister, whether my sister has to look after the kids at her own expenses or she can claim for the same after the divorce. What about the custody of children? because my brother in law is not ready to take the custody of them.

Please advice.


 11 Replies

Adv Archana Deshmukh (Practicing Advocate)     23 May 2013

Even if the father of the children is not willing to take their custody, he cannot avoid the responsibility to maintain them. Your sister can claim maintainance for both the kids. She can claim for their maintainance even now, there is no need to wait till divorce.

Advocate M.Bhadra   23 May 2013

                                 Custody of the child ordinarily is with the mother up to five years of age & the father gets visiting right. The court while deciding the issue with regard to child custody consider the "welfare of the child' only & in order to grant the custody the tender age of the child plays a big role. The Hindu Minority & Guardianship Act, 1956 clearly provides that natural guardian of a minor child is the father however up to the age of 5years custody shall ordinarily be with the mother. In order to get the custody from the mother the father has to prove in the court that the 'Welfare of the child' will be best if the custody is granted to him as he only can be the best person which help in the over all development of the minor child. The father you will be ordered to pay for the maintenance of the child on regular/monthly basis. If the wife after divorce herself is ready to give away the custody of child to the father of the child then court will not interfere in such case, this will be mutual understanding between the parties.

                                 In Geeta Satish Gokarna vs Satish Shankarrao Gokarna on 29 March, 2004 in this case the wife agreed, at the time of divorce by mutual consent not to seek maintenance, having receieved an amount as full and final settlement, but afterwards claimed maintenance u/s 25 HMA.  The Court held her claim to be maintainable – held - Right to maintenance is a part of larger right to life and any agreement to the contrary is against public policy and pro tanto(to that extent) ineffective.

Rohit D (Employed)     24 May 2013

I Thank both of you for your reply,

I have a question here, we have planned to perform the marriage of my sister as soon as divorce is obtained and we have already selected a bridegroom for her (who is a divorcee) and both are ready to get married after the divorce so, in this case whether my sister can file a case after her marriage on behalf of her kids and claim maintenance for education and marriage of her kids from her natural father?

Adv Archana Deshmukh (Practicing Advocate)     24 May 2013

Your sister can claim maintainance of the son till he attains majority and for daughter upto her marriage along with reasonable exepenses of her marriage. The provision of maintainance can be made in the MOU at the time of filing of MCD.

1 Like

Mukesh (Data Entry Operator)     25 May 2013

Respected Sir/Madam,

I am in Gujarat and I arrange marriage @2009. We are living in join family. I have one daughter and she is 3years old. My wife goto her father home (at 03/2012) when my daughter is 1.5year. I registered police complain 2 times; Mahila Police call me and my wife and understand her but she's father refuse. After 1 month I send legal notice (at 06/2012) but still I have no reply and also she not came total duration is (03-2012-05-2012) 1 year and 2 month.

She is false and not to do any work at my home; never cook good food; never do any work perfect means if she clean the florre their is still have dust etc. but I or my family member never say anything about that just bear. Now she is gone and I have to manage my daughter and my job. I deicded to divorce from her and also want to take my daughter. (she is now 3years)

I send legal notice but there is no any reply. What I do?

One more thing that brothers-in-law (my wife's brother) wife also file the maintainance case to my brothers-in-law. Now on 28th may 2013 last judgement.

Help me I want to divorce from this false and cruely family.

I manage my and my daughter life very bestly.

Adv Archana Deshmukh (Practicing Advocate)     25 May 2013

@ Mukesh,


Start your own thread instead of posting ur msg here.

Rohit D (Employed)     28 May 2013


I thank you so much Madam, till here everything is clear.

I have heard that it takes 6 months to get divorced even after filing a mutual divorce case? why is it so? and can we get divorce in less than 6 months because already my sister is living with us for more than 1 year now and she is mentally broken and we have made up her mind to start a frest life now. She has accepted this just because of her children and she dont want to over burden her "would be" husband with loads of responsibilities i.e. expenses of marriage of her daughter and education of her son.

Adv Archana Deshmukh (Practicing Advocate)     28 May 2013

Its the law and the court has to follow it. The 6m waiting period is mandatory and is given to make attempts of reconciliation between the husband and wife so that they can rethink over their decision of divorce. If even after 6 months the parties still wants divorce then, the court has to pass the decree.

Adv Archana Deshmukh (Practicing Advocate)     28 May 2013

As far as maintainance of children is concerned she can either take one time lumpsum amount towards full and final settlement from her husband or opt for monthly maintainance depending upon the understanding between the parties.

Mukund (Manager)     30 May 2013

Respected Advocate,

I am an IT professional and a divorcee. Me and my ex spouse got divorce by mutual consent in the year 2004. We have a son out of the brief wedlock born in year 2000. It was agreed between we two that the custody of our son will be handed over to me after she gets married. She told me way back in mid 2005 about her remarriage but she did not hand me over the custody of our son. I sent her legal notice but she did not tell me about her whereabouts and refused to handover the custody. I have not been allowed to meet my son since last 10 years approx. From my side, I did not legally ask for custody of my son. I used to pay her money every month as per the court decree till she got married for maintenance of my son, which I stopped paying after she told me about her remarriage.

I am still alone and did not remarry yet, but planning to marry soon. I have not identified my would be partner yet.  I receive a lot of marriage proposals, but they are concerned about my ex and my son from my first marriage creating any trouble in the future about property about overall success of my second marriage. Is there any real  possiblity of this happening in future?. Request you to please answer my question in detail quoting some judgements of high court of supreme court if you can.

Thank you very much, With best regards,


Adv Archana Deshmukh (Practicing Advocate)     30 May 2013

The overall success of your second marriage depends upon you and your second wife only. As far as property is concerned then, your first wife cannot claim anything from you now. Only your son is legally entitled to succeed you as your heir along with your second wife and children. But when your first wife have not even let you know her whereabouts since last so many years and have even got remarried, then why you are unnecessarily bothering about she and the son creating any trouble in your new life?

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