Child custody in dowry death case (304B)

[pawan sharma]

Sir,

I was falsely implicated in dowry death case lodged by my in-laws in May 2016. I am now out on bail and filed a petition claiming custody of my daughter in family court. Right now she is with my in laws. Her age is 2 years and 3 months. What are the chances of winning the case? Please help me with the arguments that may happen in the family court regarding this matter.

[Dr. Ashok Dhamija]

As per Section 6 of the Hindu Minority and Guardianship Act, 1956, in the case of a boy or an unmarried girl, the natural guardian is the father, and after him, the mother. This section is reproduced below:

“6. 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.”

However, Section 13 of the said Act provides that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Moreover, no person shall be entitled to the guardianship by virtue of the provisions of the above Act if the court is of opinion that his or her guardianship will not be for the welfare of the minor. This section is reproduced below:

“13. Welfare of minor to be paramount consideration.—(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”

 The fact that you are facing a dowry death case and are currently on bail, may come in the way of your claim to be given custody of the minor daughter if the court considers that the welfare of the daughter may be affected if she is given in your custody. The result of the case depends on the facts and circumstances of the case.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[pawan sharma]

Thank you very much sir for your kind advice.My wife committed suicide in May 2016.My in laws filed dowry death case against me and my parents and took away my daughter.She is two and half year old and currently residing in Patna with my in laws.I got bail in June 2016. Currently I am under suspension from my job and cannot leave Hyderabad which is my company’s headquarters. I tried filing custody petition here but after lot of efforts, my lawyer told that the petition can be filed in Patna only. I need your kind guidance regarding the aforesaid case.

[Dr. Ashok Dhamija]

Please engage some local lawyer at the place where the case is required to be filed.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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