Custody of child

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Question asked on: 26/08/2015

Case filed by wife. Going on for past 8 months out of which she remained absent for the last 4 times repeatedly. She is staying with another man in another city. Our 3 year daughter is with her parents. During the last time even the judge fired her lawyer about her absenteeism.

What is the next proceeding of the court in such case and how the proceeding are made and how to file for custody of girl child?

Advised by: Shivendra Pratap Singh,

If a party to the suit used to absent on many hearings then court has power to decide the case on the record of other party, this decision is called “ex parte” decree or order.

When case is decided by the court ex parte then it shall be enforceable unless and until no restitution application is filed by the judgement debtor or opposite party.

You should file an application on the next hearing for ex parte decree that opposite party remaining absent at many dates. If court satisfies with your plea and found that there is no other way except pass ex parte decree then court may proceed further. But must borne in mind that it is discretionary power of the court and you have no matter of right to decide ex parte.

Custody of child. According to Hindu minority and guardianship act, father is the natural guardian of the child but till the age of 5 years mother is the natural guardian, but her right towards guardianship is substitute or in furtherance of father’s right.

Guardianship of child may be challenged by the father at any time within 5 years on certain condition. Condition may be vary by case to case but in all cases father have to prove that guardianship of the child would be necessary and benefit of the minor.

Your wife has been living with another man and she has no reasonable cause for such living,divorce petition is pending due to her fault, she used to absent in court….. these facts are in your favour to get guardianship of your child.

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Shivendra Pratap Singh

Advocate, Lucknow

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