► I am a 37 female with a 2 year old child living with me currently. Me and husband are living separately as he is abusive. I want to apply for divorce and child custody based on cruelty. Is child custody a different petition or can it be in the divorce petition itself? My lawyer advised that I cannot apply for child custody as the child is already living with me . Please advise
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2 Answers
Jul 24, 2025
As per law, till the age of 5 years, mother is the natural guardian of child irrespective of sex of child and no court disturb the custody till such custody is dangerous for child. under section 26 of HMA you can claim custody of child after child attains the age of five. However, husband has every right to claim custody of child and visitation right.
Jul 24, 2025
Dear Madam,
Divorce and Child Custody – Can be in the Same Petition:
Yes, under Indian law, you can and should seek child custody in the same divorce petition, especially if you're filing under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (which deals with cruelty). There is no legal restriction that prevents a parent from seeking a formal order of custody just because the child is already living with them.
BUT IT IS BETTER TO FILE TWO DIFFERENCE CASES AS SUGGESTED BY YOUR ADVOCATE.
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