Paid Advise

Mother is taking custody of children from father

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Family Law

Reading Time:

Question: My wife is living apart. She is living with her paramour and happy with him. I have two children, both are sons. Now the mother is taking custody of the children from the father. It is a very painful situation for me. Both sons are minor and very happy with me. They want to live with me and their grandmother. My wife has filed a case in the district court for transfer of custody of children. I have received a summon from the court. Can my wife take custody of children from me? Mother is a very careless lady and without any reason she has been living with another person. She is very cruel and does not love my sons. She is doing so with the intention to torture me. Please help. I don’t want to lose custody of my child. 

Asked from: Telangana

Your sons are very happy with you. Their mother is living with her paramour. More importantly, their mother has no love and affection for her child. These facts are in your favour therefore, you can retain custody.

Welfare of child

The welfare of child is the paramount consideration for custody. The court has to decide custody on the touchstone of well being and welfare of the child. Custody is a human problem; it cannot be decided on the strict rule of legal provision.

In Nil Ratan Kundu and other vs Abhijit Kundu AIR 2009 SC (Suppl) 732, the Supreme Court has held that a court while dealing with custody cases, is neither bound by statutes nor by precedents. It should be solved by human touch. 

In your case, children are happy with their father and grandmother. The father and mother are both natural guardians under Section 6(a) of Hindu Minority and Guardianship Act. 

Also read: Visitation right

In Githa Hariharan vs. RBI and another AIR 1999 SC 1149, the Supreme Court has held that the mother’s right under Section 6(a) stands at par with the father if the father is absent. Father and mother both are natural guardians but welfare of the child is the central point in determination of custody rights. 

The Court will examine the circumstances of your case. It shall also consider the carelessness and character of the mother while deciding the custody. Their mother has breached matrimonial loyalty and is living with her paramour. The ambience of such a family would be harmful for the children. Therefore, your wife cannot take custody of children.

Taking custody of children from the father

Being a mother, she is claiming custody. But she lacks the ground for taking custody of children from the father. The court cannot ignore the fact i.e. “welfare of the child” while deciding custody. The ultimate goal of the court, in custody matters, is to secure the future of minor children.

In Tejaswini Gaud vs. Shekhar Jagdish Prasad Tiwari and others AIR 2019 SC 2318; the Supreme Court reiterated that:

The welfare of the child has to be determined owing to the facts and circumstances of each case and the court cannot take a pedantic approach.  

You are taking care of your children very well. Their education and moral training would be fairly well in your custody. They are psychologically and physically living in the secure atmosphere of a family. Living with mother’s paramour would be insecure for them. So I think you will retain their custody. Mother cannot take their custody from you.


Submit a Comment

Your email address will not be published. Required fields are marked *

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

More For you

What happens if I break my girlFriend engagement? 

Question: What happens if I break my girlFriend engagement? My girlfriend is engaged with another person without informing me, now I want to marry her, but she moved on. What I can do in this situation shall I approach the groom to convince.  Asked from: Uttar Pradesh...

Will my husband get baby boy custody?

Question: I got married on 3rd march 2020. I have a one year old baby boy. My husband is an alcoholic smoker, drug abuser, ganja addict. He is always there in fights, he even has a sword and gun, he beats me and even has extramarital affairs. Now I have left his house...

My minor son sent messages to my husband about my affair

Question: My minor son sent messages to my husband about my affair. He sent a message to my husband that I have an affair but later he realised and asked sorry, but husband using that message in court to prove I have affair what to do? Asked from: Karnataka I think...

How to get a mutual consent divorce within six months?

Question: I was married to my boyfriend when I was studying in B.Tech. We solemnised our marriage in a temple. How to get a mutual consent divorce within six months? All those things happened in hush-hush. No one knew about our marriage but we got registration of our...

Legal validity of consensual relationship with brother

Question: It is a complicated situation for me, I am a 40 year old lady. My husband was an abuser and we have legally divorced 6 years ago without any issues left. I left my hometown, came to Delhi to join a job and started staying with my brother who is never married...

Child Custody to a third party 

Question: My partner wishes that I could take legal custody over her. She is happy with her family but wants to leave. I live in the UK, and she lives in India. What (if any) are our options? Can the court allow child custody to a third party?  Asked from: Uttar...

Girl’s family is threatening for love jihad case

Question: My friend is muslim he loves hindu girl. Girl’s family is threatening for love jihad case so he want to convert to hindu religion. He loves that girl and agreed to change his religion. Now he is afraid that the girl’s family may file a case against him and...

How can I leave my husband’s home without his consent?

Question: Hello, I have been married for 6 yrs. And my in-laws have been demanding for more dowry. How can I leave my husband’s home without his consent? The gold gifted during my marriage is in my father in laws custody. Well I did not encourage more dowry and hence...

My boyfriend refuses to marry after 11 years of relationship

Question: After 11 years of relationship my boyfriend refuses to marry. My boyfriend and I have been in a love relationship for 11 years. I even fought for him with my parents for him. I'm with him in all his ups and downs. He made me believe about our marriage, kids...

Kanoonirai has been advising in legal issues since October 2014. You can consult a lawyer through online media, telephonic consultation and video conferencing.