I had taken divorce from my wife 2yrs back and is following the orders of the honourable court very sincerely. We got divorce through mutual consent 2 yrs back. My daughter is 7 yrs of age and is staying with my ex-wife. At the time of divorce my ex-wife was unemployed and as per the court orders I am paying maintenance for both of them I am meeting my daughter once a month only as we are staying in different cities, my ex-wife is now working and drawing a handsome salary from her profession.
I want to know if I can apply for the custody of my child and also can I request the court that as my ex-wife can maintain herself from her salary can I get an order from the honourable court so that I am exempted from giving maintenance to her.
Please guide me as to how can I get custody of my child.
One of the main requirements of Section 125 of the Cr.P.C. for grant of maintenance to wife is that she is unable to maintain herself.
Further, Section 127 of the Cr.P.C. provides for alternation in maintenance allowance, on proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance. This section also allows the Magistrate to cancel the maintenance order in appropriate circumstances
In view of these, you can file an application before the court under Section 127 Cr.P.C. for alteration or cancellation of the maintenance to your wife, giving the reason of her fresh employment. The court will decide the case on merits.
To reply to the second part of your question, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the first natural guardian of minor son and unmarried daughter. You can file an application under the Guardians and Wards Act, 1890, for being appointed guardian and for seeking custody of your minor daughter. It will be decided by the court on merits by taking into consideration all aspects, including welfare of the minor daughter.
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