3 Answers
Dear Client,
Divorce on the ground of cruelty is generally accepted according to applicable personal laws, for example, Section 13(1)(i-a) of the Hindu Marriage Act (HMA), 1955. When it comes to your child, you do not need to file an entirely separate application to arrange the custody matters already during the divorce procedures. In accordance with Section 26 of the HMA, family courts are able to issue the interim orders in regard to custody, maintenance as well as the upbringing of minors within the matters of divorce itself. The advice prompted by your lawyer seems to be based on the existing legal presumption related to young children. In accordance with the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, children under the age of five should typically stay under the mother’s custody. Because you already have the two-year-old with you, there is hardly any need for an urgent interim application to "take" custody, considering that the possibility of separation is not imminent. However, if you wish to protect your rights and prevent any disputes in the future, it is advisable to ask for permanent legal custody as well as child support in your main divorce application or file an application seeking custody under the Guardians and Wards Act.
I hope this answer helps. If you have any further query kindly do not hesitate to contact us. Thank you
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.
