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Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:

(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.
Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best
interest of the minor children.

The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.

Generally speaking, Guardian and Wards Court have power to grant:
Permanent Custody
Interim Custody
Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .

The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.
The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |November 4th, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).
Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.
Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best
interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:
Permanent Custody
Interim Custody
Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |November 1st, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.
Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.

Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or

(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is

empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.
Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:

Permanent Custody
Interim Custody
Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |October 28th, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:
Permanent Custody
Interim Custody
Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.

One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |October 26th, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.
Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.
Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).
Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:

(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or

(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best
interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.
If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.
Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:
Permanent Custody
Interim Custody

Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.
Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.
One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.
The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |October 24th, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
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 purposes 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:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.
Section 42. Power to make such orders after decree.-

The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.
Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).
Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.

Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.

Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:

Permanent Custody
Interim Custody
Visitation Right
Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.
Important factors, amongst other, which are considered by the Court in awarding custody are:
a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.
In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.

Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.
Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.

One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |October 3rd, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in Pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children

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 purposes 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:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.

Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.

Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.

Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:

(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or

(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is

empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes

the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

CHILD CUSTODY
In all matrimonial proceedings, the most important and complex issue is that of Child Custody. In Court room, its like battle line are drawn and both the parties are not ready to loose even an inch. It appears as if through the medium of child custody, both the spouses want to establish the guilt and fault of the other party.

Though all matrimonial laws provides a provision regarding custody of child, but the real power lies under Guardian and Wards Act-1890. Guardian and wards card are empowered to determine the issue of child custody.
Generally speaking, Guardian and Wards Court have power to grant:

Permanent Custody
Interim Custody
Visitation Right

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favor of one spouse as against the other is WELFARE OF THE CHILD.

Important factors, amongst other, which are considered by the Court in awarding custody are:

a. Education of the father
b. Education of the Mother
c. Family background of the Husband which includes financial and educational background.
d. Family background of the Wife
e. Financial Background of the Husband and Wife
f. Wishes of the minor
g. Better chances of overall development of personality of child.
h. Conduct of the parties

Interim Custody is awarded by the Court during the pendency of the case before it. Generally, the Court awards interim custody when such an order does not affect the over all development of the child and same is in no way prejudicial to the interest of the minor. Court tries to bring equilibrium between the husband and wife and also keeps a vigilant eye that the child should not become shuttle cock between warring spouses. While awarding interim custody, Court has power to impose certain conditions which could be deposition of passport of minor, if any and/or direct the party to deposit its own passport so that the child could not be removed from the jurisdiction of the Court.

Visitation Right is granted by the Court at two stages. Firstly, at the stage of trial, and the other, after determination of entire issue of the appointment of Guardianship of minor by the Court. Indian law is clear on the point the proper development of the child is possible only after the child is showered with the love and affection of both the father and mother. Once the permanent custody is granted to one of the spouse, other parent has an inalienable right to meet the child(ren) one or twice a week or as directed by the Court. The object of law is that the emotional bond between child and father or mother, as the case may be, should not be snapped.

In nut shell, we can say that welfare of the child is the paramount consideration before the court while adjudicating the claims of husband and wife over the child.

A good child custody lawyer in India is a one who is not only aware about the laws and rules and plethora of cases but also has the ability to bear the emotional and psychological need of either of the father or mother. A good Child custody lawyer has to handle the legal and emotional issues with utmost precision. Custody lawyer have to act not only as a professional but also a human being with the heart of parent to fight out the child custody case in the Court of law.

ISSUE OF CHILD CUSTODY AND ACCESS:-
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.

The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.

Over the years, there is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The non-negotiable principle on which custody is decided is the ‘best interest and welfare of the child’. Who will best serve the child’s emotional, educational, social and medical needs is the only criteria.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child’s living and educational costs be met?

Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child’s convenience, could include the non-custodial parent’s right to school events, etc.

One ought to remember that as a parent every ‘right’ you exercise ought to also have a corresponding ‘duty’ towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child’s educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.

A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor’s property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be ‘the best interest of the child’.

By |August 28th, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

Custody of Child

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children

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 purposes 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:

Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)

In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.
Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.

Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith

Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Section 42. Power to make such orders after decree.-

The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.

Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-

In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.

Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:

Section 6 of the Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:

(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is

empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.

Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best

interest of the minor children.

The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes

the children adopted by both the parties. However, it does not include the children which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.

If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.

In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

By |August 23rd, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Custody of Child in pune

CUSTODY OF CHILD –

Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children

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 purposes 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)
In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be 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, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.
Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faith
Power to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.
Section 42. Power to make such orders after decree.-
The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.
Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.
Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interests in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;
(c) in case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu; or
(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).
Explanation.- In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.
Under all the Acts, the Court has been empowered to pass interim order when the proceedings are pending or even after a decree has been passed in respect of custody, maintenance and education of the minor children. Not only this, the court has the power to revoke, suspend or vary any such order from time-to-time these orders have to be passed by a Matrimonial Court at anyone of the following stages of marital proceedings:-
Interim orders: These orders are passed when the proceedings are pending between the parties till the matter is finally disposed of.
Permanent Orders: These orders are passed when the matter is finally disposed of and a decree is passed.
Subsequent to the passing of the decree: In this case, the Court may be called upon to pass an order in two situations:
(i) Where in a matrimonial proceedings, no application has been made by either of the party for custody and after passing of the decree, a fresh petition may be made for custody, maintenance and education of the minor children; or
(ii) When the court has already passed a permanent order of custody, an application has been made to modify, revoke or suspend or vary any order.
The orders in respect of custody, maintenance and education of the minor children are very vital in the matrimonial proceedings as it affects not only the children, but the parents also. Therefore, the Court has to be very cautious in dealing with the such applications. Such orders are not final and the Court is
empowered to alter or modify any order at any stage of the proceedings or subsequent at any time. After passing of the decree the child has attained majority.
Thus, the Court exercises jurisdiction in respect of custody, maintenance and education of the minor children till they attain the age of majority. This power of the Court is very delicate and the Legislature reposed confidence in the Matrimonial Courts which has to be exercised in a judicious way and in the best
interest of the minor children.
The expression “Minor Children” includes children either born of the marriage or born to the party prior to marriage, born of the marriage which has been declared null and void or dissolved by a decree of divorce. It also includes
the children adopted by both the parties. However, it does not include the children
which have been adopted by a wife prior of her marriage, section is not attracted to the children belonging to one of the parties prior to the marriage, It means that the children belonging to both the parties to the marriage, whether after the marriage or before the marriage or by way of adoption.
If the marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.
In a proceedings before Matrimonial Courts, the Courts have to decide the question of custody of children. The Courts retain this power not only during the pendency of proceedings, but also after passing of a decree. It can revoke, suspend or vary, any such order made earlier. While giving the custody of a child, the Courts have to keep in mind the welfare of a child which is a paramount consideration. Though other factors are also important, but welfare of the minor is of utmost consideration while disposing of an application for custody of minor children. The wish of a child is also equally important. But the wish of the child becomes relevant, if the child is old enough to make an intelligent preference. in the case of a female child generally the Courts have given custody to the mother as on attaining the age of puberty, such child requires the care and attention of the mother. Thus, over and above of all factors, it is the welfare of the child which is the decisive factor while deciding the question of giving custody of a child.

By |August 21st, 2017|Advocates for Custody of Child in pune|0 Comments

Advocates for Divorce in pune

Ved Legal comprises of a dedicated team of experts. We offer a multitude of services in the areas of Co-operative and Property law, but we are best known for our expertise in the Co-operative field i.e. Society Formation/Registration as well as Deemed Conveyance, Conveyance thereof. We have vast experience in representing our clients in matters of Society Formation, Deemed Conveyance, and Recovery. We also undertake different types of property matters including Conveyances, Agreements (Rent, Lease and Leave & Licenses), Partnership Firms & Its Registration, Wills, Probates, Succession, Contracts etc..First of all, we should tell you that as you are good friend of one of the spouse you can go a extra mile to make things better and try to reconcile them. Divorce must be the last option when all the options of reconciliation have been exhausted.

Assuming your friends are both Hindus they can apply a divorce under Mutual Divorce and it is recognized under Section 13B of the Hindu Marriage Act.Section 13B states that the parties can jointly move a petition for dissolution of marriage by a decree of divorce in the District Court on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
The Court shall then record the joint statement of the Parties and pass a First Motion Order giving time of 6 month to the parties to resolve their dispute, however in case the parties are unable to resolve the issues within the stipulated time, the Court shall pass a decree of Divorce. So therefore, divorce by mutual consent takes about 6-7 months.
The general rule is the divorce by mutual consent is filled by both parties jointly and their joint statement is recorded in the court which is signed by both in presence of their lawyers and the Family District Judge. This process is repeated twice once when the joint petition id filled also called first motion and after six months, which is referred as second motion.
After this process is complete, Judge is satisfied of the consent of both for divorce all issues like custody of child if any, permanent alimony and maintenance, issue relating to return of stridhan of the wife and settlement of jointly owned properties, divorce is granted.
You should enter into a Settlement Agreement with your wife with respect to the terms and conditions of the divorce. This should specify the distribution of assets such as stridhan etc., maintenance/alimony payable by you post divorce that this amount would be a full and final payment and no party shall have any other rights as against the other party. And get this Agreement signed by 2 witnesses.
In any of the spouse is not ready for the mutual divorce, then anyone can file a petition under any of the grounds mentioned under Section 13(1) of the Hindu Marriage Act. The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

1. Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

2. Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.

3. Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

4. Conversion – In case, either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

5. Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

6. Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

7. Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.

8. Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

9. Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

10. No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

1. If the husband has indulged in rape, bestiality and sodomy.

2. If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.

3. A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.

4. If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.