child custody
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In most cases, when a wife and husband disagreed, they would fight over the child, claiming it as their own. To force the other partner to accept the conditions of the agreement, one spouse occasionally took the child away. Section 26 of Hindu marriage act deals with the custody of child, which runs as fallows
In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the Court, may also from time to time revoke, suspend or vary any such orders and provisions previously made. As per the said section it is always the welfare of the child is paramount consideration. None of the parents have absolute rights over child . As per section 6 of Hindu minority and guardian ship act the natural guardian is father after him mother but if they didn’t complete the age of 5 years the natural guardian is mother . The Hon’ble Apex court in catena of decisions held the child is not the property of parents and paramount consideration is the interest of child. child custody lawyers.
The Supreme Court made the following observations in Syed Saleenmuddin v. Dr. Rukhsana and Ors, a case involving a habeas corpus seeking custody of minor children, among other things: “It is evident that when a request for a writ of habeas corpus is made for custody of a minor child, the court’s main concern is determining whether the custody of the child in question can be deemed to be unlawful or illegal and whether the child (welfare )’s necessitates changing the present custody arrangement and placing the chil in the care and custody of a third party. child custody lawyers. The rule that the court will give priority to the child’s wellbeing while deciding custody issues is well-established.” child custody lawyers.
One of the earliest cases raising the topic of child custody in NRI marriages before an Indian court is Marggarate Pulparampil v. Dr. Chacko Pulparampil (AIR 1970 Ker 1). In this ruling, the High Court of Kerala recognised both the availability of the writ of habeas corpus remedy to regain custody of a child who has been unlawfully removed by a parent as well as the crucial principle of “real and substantial connection” to establish the court’s jurisdiction to decide custody issues. In this case, the court granted the mother’s request to have custody of the child transferred to her in Germany even though doing so would have taken the child outside of the Indian court’s jurisdiction. child custody lawyers. The court reasoned that the child’s best interests should come first and that doing otherwise would have been against the law. The court also established measures to ensure that the father’s parental rights in India were not entirely undermined by the proceedings by issuing a number of directives to balance the competing interests:
- The petitioner will sign a bond with this court promising to turn over the kids whenever this court orders them to. child custody lawyers.
- The petitioner will present an assurance from the German Consulate Authority in Madras stating that they will provide all help feasible for the implementation of any order issued from time to time by this Court within the parameters of German Law. child custody lawyers.
- The petitioner will get a report from the parish priest in the parish where they intend to live and send it to this Court every three months with enough information about the kids’ welfare and health. A copy of the report will also be sent to the father. child custody lawyers.
- The petitioner will periodically update the Registrar of this Court with her home address, and any change in address will be promptly reported. child custody lawyers.
- She will bring the children to this nation as instructed in this order; otherwise, she will not take the kids outside of West Germany without first getting prior permission from the court. child custody lawyers.
- She is required to bring the kids to this country on her own dime once every three years for a minimum of one month. When the kids arrive in this nation, the father will then have access to the kids under terms and restrictions set by this court. The three-year window shall be measured from the day the mother removes the kids from this country. If the father is ready to cover the costs of the mother and children’s flight from Germany to India and return, they will be brought to India earlier than the Court has ordered, as long as it is not within a year from today. child custody lawyer.
- If the father travels to Germany, he will be granted access to the kids under the terms and conditions set forth by this Court upon the father’s motion expressing his willingness to visit the kids and requesting access. child custody lawyer.
- The entire custody issue may be revisited by this Court on its own initiative or at the request of the father or mother when the children are brought to India at the conclusion of the three-year period, and the current order may be upheld, changed, revised, or revoked.