• GWOP

Hi. I am from chennai. I had filed RCR petition in September 2022. My wife had filed for divorce and MC after 6 months in 2023. I had filed an IA for visitation for my daughter who is 5 and half years old. My wife dint agree for weekend visits or even for basic phone calls, after much requests she made me sign a joint memo to let me see my daughter every alternate week Thursday in court premises from December 2023. I had to accept anything because I was not allowed to see my daughter for more than 8 months and was desperate to see her. But the visitation is not going smooth with my wife not allowing a peaceful visit, but my daughter is attached to me. Can I file a GWOP request atleast to get better visitation status. Or do we have any other options to see my daughter without my wife being present.
Asked 8 months ago in Family Law
Religion: Hindu

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10 Answers

Filing RCR is a wastage of time as neither you nor court can force or compel your wife to live with you against her wishes. Even if you win RCR case even then you cannot execute decree forcing your wife to live with you. There was no reason to sign joint memo taking consent of wife to meet daughter as per permission of your wife. You were required to file application IA under section 26 HMA claiming custody of daughter and as interim relief you should have asked court for visiting right to daughter on regular interval. You seem to have not been advised properly. For rest details and circumstances are required to be examined in order to suggest remedy.  

Siddharth Srivastava
Advocate, Delhi
1455 Answers

It is not clear whether the court has passed any orders on your IA for your visiting rights. If so, your wife is bound to comply with it in letter and spirit, failing which you may move for contempt. Especially for a girl child, the mother is the preferred choice of custodian. The father cannot demand it as a matter of right.

Swaminathan Neelakantan
Advocate, Coimbatore
2961 Answers
20 Consultations

If the joint memo is an out of court arrangement by you both, then the contents is not binding on her and you may not be able to enforce the same, even though the court has passed a general order in this regard.

It is advisable that you file a petition seeking child custody since your child is over 5 years of age and also seek visitation rights as an interim relief  by filing an application to this effect along with the GWOP

T Kalaiselvan
Advocate, Vellore
87725 Answers
2357 Consultations

just filed the Guardina and ward act suit for daughter's visitation 

Romesh Pratap Singh
Advocate, Gwalior
23 Answers

Dear client, first file an application for visitation rights and after that file an petition for GWOP as the child is above 5 years old under section 26 of the Hindi Marriage Act, 1955.

Anik Miu
Advocate, Bangalore
10395 Answers
121 Consultations

Firstly, it is not clear from the above-said facts that whether your IA is decided yet or not. And if it is not decided, than get it decided by the Court on merits.

 

Answer to your question- Yes you can surely move a petition under Gurdianship and Wards act seeking temporary custody or joint custody of your child. 

 

For custody of Child the court will examine the parties on various factors-

  1. Welfare of the child
  2. Earnings of the parties
  3. Conduct of the parties 
  4. Wish of the child if he/she is around 15 years of age.

Vishek Vats
Advocate, Delhi
90 Answers

- As per law, both the parents have an equal right to the custody of a child.

- Under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian. 

- If one parent is given physical custody, then periodical interaction and visitation is given to other parent.

-  However, joint custody is also given to parents, i.e. both the parents will take care of the child turn by turn keeping the child in their custody. 

- As per the Supreme Court, for the custody of the minor, the only consideration is the welfare of the minor. 

- Under Hindu law, A mother usually gets custody of the minor child, under the age of 5 and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.

- The choice of a child above the age of nine is considered, and further a mother who is proven to neglect or ill-treat the child is not given custody.

- Since, the daughter is more than 5 years age, then you can claim custody of her after giving reason for her welfare.
- Hence, legally you can claim for joint custody under the Guardian and Ward Act. 

Mohammed Shahzad
Advocate, Delhi
14773 Answers
224 Consultations

Yes you can do the same 

Prashant Nayak
Advocate, Mumbai
32881 Answers
209 Consultations

You can file petition in family court seeking joint custody of your daughter and interim visitation rights 

Ajay Sethi
Advocate, Mumbai
97523 Answers
7889 Consultations

Yes, to meet the child in adverse condition filing suit for custody is a good option. In the said suit apply for interim custody as well. 

 

Devajyoti Barman
Advocate, Kolkata
23333 Answers
522 Consultations

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