Asked March 07, 2017

Custody of children

  • 1 Answer

I have two baby boy 9 & 3 year old. After my wife's suicide, my children is at my brother in law's custody forcefully and he claim for guardianship at court. I want to my child and counter application given at court to take my child earliest, but he didn't reply at court and time passed 15 month. I am very frustrated for my children's future. Opposition make huge financial demand and want to kept it their custody. Kindly guide as possible as fast to take my children's custody. Can I get my children? How? Fastest legal way? Any else regarding cited case. If any more information required please ask me telephone or email please. 9924223342

I have replied in court but he is not replied to court too long time ( 9 dated passed out) . Also he is not allowed me to meet my children or talk telephonically. Answer me following please. 1) how long should I wait for custody? 2) can I take custody before case decision? 3) can I do other case on him like manhani/ loss of children's future etc to take pressure on him? 4) if my children given statement against live with me, as brain washing of him by them, children's custody can I got or not? 5) my lawyer said that if op replied then after I should do something till wait, is it true?

Answer 1

Before I come to the issue, I would like to bring some clarity on the law so that it is well-understood by you. Section 4(b) of the Hindu Minority and Guardianship Act, 1956, described the term guardian. The ingredients to this definition related to the current issue are:

  • Natural Guardian
  • Guardian appointed by the will of minor’s father/mother
  • Appointed/declared by the court

As per the given facts, these ingredients satisfy your claim. In Essakkayal Nadder v Sreedharan Babu[1], the father would be the natural guardian of the minor if the mother is dead and no other person is authorised to assume the role of the guardian in the presence of the father. Section 9 (1) of the said Act entitles the father to appoint the guardian “by will”, but as given in the facts, the second ingredient is also not fulfilled as you have not given your consent to any such appointment and it has been taken by force. Now, the third ingredient can be read with Section 13 of the said Act which states that the court gives paramount consideration to the welfare of the minor. Now, the present litigation will be dependent upon this very aspect.

Now, answering the issues based upon the abovementioned interpretations, you are the natural guardian of the minor which is the settled law. The guardianship of the minor will be determined upon the well-being of the minor in your custody. To redress the dilatory tactics, you can file an Application for temporary or interim order for show cause mentioning the custody of the child till the final decision is pronounced supported with reasons satisfying the court that your child will be in better care in your custody. Also, with respect to forceful possession, you can file a complaint to the Magistrate under Section 200 of the Code of Criminal Procedure, 1973.  


[1] AIR 1992 Ker 200

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