Legal Question in Family Law in India

in case of separation bettween husband and wife over minor conflict, and when the wife is residing with her parents with the below 5 yrs old girl child after absconding from the matrimonial house, does the possesion right of the child automatically rests with the mother? what if father goes and demands to take away the child as he wants to educate her in another city where he lives, and where better schooling facilities are available? Mr. Goel has suggested in response to this query earlier that the DVA should be referred to etc, but there was found nothing that was of relevance in that. can sec 97 come in to play here for stopping the husband, i.e. if at all he can be stopped from taking the child away legally? Mr. goel has earlier responded to this query in that the father legally cannot be stopped by the wife or the in-laws under any legal provision.
if sec 97 can be applied, why not the same be applicable for a wife who inthe first place ran away with the child, her medical docs and birht certificate etc and also all the jewlery in the house, without informing anyone? can she be charged with theft?
legal experts please reply at the earliest and pl give specific guidance. this matter is very traumatic and confusing.

Asked on 4/23/10, 11:55 pm

2 Answers from Attorneys

Sudershan Goel India Law Offices of Sudershan Goel - Advocate

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In my opinion the custody of a minor child cannot be disturbed forcibly. If one spouse has custody, only option for the other spouse may be to make application to the appropriate Guardianship Court seeking custody of the child. The courts shall decide the issue keeping in mind "welfare of the child" as the paramount consideration as per Hindu Law. The question of legal rigths is secondary.

Answered on 4/26/10, 11:14 am

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