Elen Joy
in Civil Law Civil Procedure Law
Asked August 20, 2017

Custody of Son

  • 1 Answer
  • 754 Views

How to get the custody of my son?Hi sir I have a doubt.. my husband gave a divorce petition.before giving petition he throw me out of the house and kept my 3 and half years old son in the matrimonial house and is not allowing my son to be with me and he a telling to sign the agreement paper and to take child.. and after a month,he left to Abu Dhabi informing me that he will be back after one month. After one month I filed domestic violence case as the my in-laws are not allowing me to meet my son and are not taking care of him also. When I got the court order of protection,they just moved from the marital house with my son and detained my son for almost one week. They then sent an injunction petition to me previnting me from meeting my son. Actually the order is not valid and I again have advanced petition.and if it's success whether I can take my son to my home with me.

Answer 1

 

In the recent landmark case of Roxann Sharma v. Arun Sharma[1] the Supreme Court, after going through several previous decisions and examining the  various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890 has ruled that a minor who has not completed the age of five years should be allowed to be with his mother.

The Supreme Court has also said that the child should not be treated as a “chattel”(movable property) and even though under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court has distinguished between guardianship and custody and has said even if the guardianship remains with the father, the custody of the child till he/she is below 5 years, should always be with his mother.

Therefore, you will definitely get the custody of you child and no injunction from your in-laws can restrain you.

 

 

[1] http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html

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