My wife denying me to meet my minor child, what to do?

[Anonymous]

My wife is living separately from me and my minor son is also living with her. She is denying me the opportunity to meet my son. I am not allowed even to talk to him on phone. What can be done? Under what provisions can I approach the court, if at all?

[Dr. Ashok Dhamija]

You may have to approach the court for getting custody and/or visitation rights in respect of your minor child. The relevant legal provisions are reproduced below.

In the case of Hindus, Section 6 of the Hindu Minority and Guardianship Act, 1956, lays down who can be the natural guardians of a Hindu minor:

“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.”

Then, Section 7 of the Guardians and Wards Act, 1890, permits the court to make order with regard to guardianship of a minor child:

“7. Power of the Court to make order as to guardianship.— (1) Where the Court is satisfied that is for the welfare of a minor that an order should be made—

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”

An application for asking the court to make a guardianship order under above Section 7 can be made by a parent, amongst other persons, as permitted under Section 8 of this Act.

Further, under Section 12 of the Guardians and Wards Act, the court has the power to make orders with regard to temporary custody of the minor child and also relating to visitation rights to meet such minor child, and this section is as under:

“12. Power to make interlocutory order for production of minor and interim protection of person and property.— (1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2) If the minor is the female who ought not be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this section shall authorise—

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.”

Moreover, Section 17 of the Guardians and Wards Act lays down what are the matters which are to be considered by the court for appointing guardian of a minor child:

“17. Matters to be considered by the Court in appointing guardian.— (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

*      *      *

(5) The Court shall not appoint or declare any person to be a guardian against his will.”

So, in order to get custody and visitation rights, you may have to file an application to court under 7 and 12 of the said Guardians and Wards Act, 1890. In most states, such application is filed before the Family Court.

     

---

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.

[Author]

Posts