How can I get my little daughter?(1.5 yrs old)?

Question

Soon after my daughter was born, my wife decided to separated from me and has been living at their parents home.The divorce petetion is filed and proceedings are going on. As she do not have any income source, I am supporting her by all means including her lawyer fee. Inspite of all my efforts, She and her parents did not allow me to see the baby from last one year. Now, I am decided to get the baby by force. Legally is there any issue that prevents me doing so? I had verified with my lawyer but I seek others openion also.

I will be very thankful for your advice.

Additional Details

Let me add more details

1) I am paying money only for my daughter expenses but she is using it for everything including her lawyer fee.

2) I tried to talk to lawyer to convince her. but he could not do anything as she is adament

3) I am ok to leave the girl with her mother provided I have visiting rights. but since the case in is progress, and she is dragging it with no reason, it is expected to get the judgement in next one year. Before that, I want to get the control of kid so that my kids childhood is not spoiled. (FYI-I am in India and the case is being filed in India)

4) She does not have any mode of regular income. I do not have any criminal record and have very decent job.

5) The key questions are, What will happen if I get my daughter by force. What are the options that she can exercise legally?

Thanks a ton for all your inputs.

Hi Vijay,

Thanks for the detailed explanation. You have almost addressed my concerns[I am a hindu and she is also a hindu married as per hindu marriage act]

I appreciate if few more concerns can be answered so that it is useful to the readers as well.

1. The court did not asked me to pay the Maintaince Pendentillite & charges for legal proceedings. I am paying because mywife does not have income source to take care of kid.
2. She is just dragging the case with multiple adjornments [may be she wants me to pay her for longer period]
3. While the court will take its own time to give the judgement, how do I see my kid? what should I do if she do not allow me to see the kid?
4. Would you please eloborate on the legal options that she will have when I take the kid by force?

THANK YOU VERY MUCH for the details.

Great service.

Answer 1

Best Answer - Chosen by Voters

All these details you mentioned here but failed to mention your religion & the religion under which you got married to her to ascertain under the which all Acts your case is covered. Any how considering you are Hindu & married according to Hindu form of marriage. Your divorce proceedings are pending under the Hindu Marriage Act & therein you have been asked to pay her Maintenance Pendentillite & charges for legal proceedings. The fact you have child who is 11/2 years old & as the provision of The Hindu Minority And Guardianship Act, 1956 section 6 provides: - Natural guardians of a Hindu minor. - The natural guardians 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 interest 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 boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the 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. Your wife has custody of the child but you can challenge this custody under section 26 of the Hindu Marriage Act,1955 which provides :- 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 purpose, 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. The court deciding the issue with regard to custody of the child, the paramount consideration which is weighed is the 'Welfare of the Child' & in doing so all the various issues with regard to age of the cild,the monetary position of the parents, the educational background of the parents, the time the individual parent can spend with the child & help the child develop as a good citizen etc have to be seen. Usually the courts allow the custody of the child of tender age as up to 5years with the mother but if there are cases of extreme misconduct by the mother that will be against the development of the child hence against the general welfare of the child the court may grant the custody of the child to father, in your case I find no such contingency or reason why the present custody of the child be disturbed as the only reason which you have to challenge is that the refusal by the mother of the child i.e. your wife from your visiting the child, considering this the court shall definitely allow visiting rights to you at reasonable time & place. The child at this tender age requires the company of the mother as the child is not old enough to be sent for any pre-school which too as per recommendation experts should not start up to the age of 4 years & the best company for the child is that of the parent specially the mother. The chances for the mother to be refused the custody of the child if the mother is unable to provide sufficient time to the child because of her pre-occupation somewhere else or her leading a immoral life that will influence the development of the child for some reasons or any such ground which shows that the 'welfare' of the child is being infringed by the mother having the custody of the child. Even cases wherein after the divorce the mother remarry are allowed to keep or have the custody of the child from their previous marriage as this reason of remarriage did not prevent her to have the custody of the child unless the 'welfare' of the child in any manner effected by her remarriage from any point of view. Whatever I state here may have been told to you by your lawyer, if not then he should better check the various judgments of various High Courts & the Supreme Court of India wherein all such principles of law with regard to issue of child custody has been formed & briefly discussed by me for your information in particular & in general for public in large. If you try to pick or take your child by force from the mother that will be taken very seriously by the district court. Edit:- As far you providing for her maintenance of your own accord & not by order of court are concerned that is a positive approach which court will appreciate in totality. As far her delaying the court proceedings for one or another reason, this you can protest & tell the court to strict down her defense in the case. As far her claiming monthly maintenance from you if you stop paying her now is concerned that she can always seek from you if she is unemployed & has no source of income to maintain herself or the child is concerned not only under the Hindu Marriage Act,1955 even after the decree of divorce is passed declaring the marriage as dissolved but even under the provisions of section 125 of the Criminal Procedure Code & D.V. Act etc. As far what all action she can take against you if you forcibly take away the child from her is concerned the claim of the child custody which she had will be filled against you wherein you may be debarred by the court even the visiting right to the child apart from her getting back the child. As told you presently you have a very good case in your favor for getting visiting right for the child but any forceful act can spoil your well maintained case & even get this petition for divorce filled by you dismissed as this act can make the presiding officer/judge biased against you for all such acts.

Source(s):

I am a Lawyer.

Answer 2

The courts don't like taking children from their mothers....but your wife not having a job to help support herself...and her unwillingness to allow you to see your own daughter...isn't helping her case one bit...

Answer 3

Legally you have the visitation Rights, and I ask you

what motivates you to pay for her lawyer fees when

she does not want you to see the child. Your not

obligated to pay them. In addition you must pay

child support, but not necessarily support for your wife

but you must speak with your lawyer about this.

Your relationship with her is over, I suggest you think

now about yourself, and you child's needs only.

Source(s):

Elle

Answer 4

i know you love your daughter, but your chances are slim unless you can prove to the court she's a unfit mother.

Answer 5

Yep, your lawyer is right in telling you that you have a case. If you are her sole source of income then she clearly isn't going to be able to prove she can support herself. Not sure if her living at home goes for or against her.

I think if you have a clean criminal history and a stable job with a decent income your case will be even greater. Show some stability in your life and things could go your way.

Answer 6

Legally you have just as much of a right to that baby as she does.

Answer 7

What ever it may be. U cont get u r child. The court give the justice that the child should grow with mother. And you can see when ever want u r child with u r wife agreed place. U r requird to support finacially for mother and child.

Above all is u must bear. U r laywer may tell u many things.

So my suggestion is u start thinking how to Convience you r wife to with draw the case and sty with u.
If case continew the loss is for you.

Answer 8

sorry to say this .
no chance to get your daughter.
ungalukku divorce aanalum neenga unga baby ya pakka mattum than ungalukku permision. because she is 1.5 yrs baby

Answer 9

I dont think you will get your daughters custody but can get a permission to see her once in a week or something. It depends on the way you prove yourself inthe court.

Answer 10

if your lawyer is not helping you have visitation rights which every one has u need to get advise from another lawyer, or get another lawyer and fire this current attorney