Legal Question in Family Law in India

Re: Child custody after remarriage

The question does not disclose the religion of the parties. The law to which they are subject could not be ascertained. Assuming that the parties are Hindus, he following answer is given:

Under the provisions of Hindu Minority and Guardianship Act, 1956 the natural guardian of a Hindu minor�s person in the case of a boy is the father and after him, the mother. The custody of a minor who has not completed the age of five years shall ordinarily be with the mother. The custody of the child could be claimed under the Guardians and Wards Act, 1890. The court while entrusting custody of the minor should be guided by the provisions of the personal law to which the minor is subject.

But the paramount consideration is the welfare of the minor. Other considerations are minor. In your case the Family Court, Orissa, prefers the natural father of the child to the custody of the child, perhaps for the following reasons:

a. The natural father is the natural guardian under Hindu Law.

b. The mother has remarried after divorce and is living with her second husband [you]

c. The mother is �aggressive and possessive� in nature

Above all the court would have thought that the welfare of the minor [moral and religious welfare and physical well being of the minor] is best protected if the custody is given to its natural father.

Unless and until it is shown to the satisfaction of the court that the natural father is disqualified or unfit to be the guardian of the child by reason of immoral or bad character, the court would not give custody of the minor to the mother who has remarried.

Re: Child custody after remarriage

Please file an Appeal within the appeal period through an Advocate in the appropriate appellate court. Since the order has been issued by a court, there is nothing to advise in open forums and you must really go to an Advocate and establish and Advocate client relationship. As a matter of fact, commenting on the decision of court in public is not appropriate for Advocates and therefore I can not advise you. I'm sorry but the only advice that I would give you is to go to a lawyer reputed in Civil litigation and file an appeal before the Orissa High Court which is the competent Court here. Thank you.

N. Ramaswami

Advocate and Patent Agent

Re: Child custody after remarriage

In the stated circumstances, the best course for you will be to file an appeal against the order passed by the lower court.

Normally, unless the father is proved to be unfit, the custody of the child should be granted to the father.

Re: Child custody after remarriage

Approach the appellate court as the child cannot be given to the custody of another spouse without asking the child's opinion.