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Man cannot take away child from divorced wife: court

Kanchan Chaudhari , Hindustan Times  Mumbai, May 14, 2013
First Published: 17:07 IST(14/5/2013) | Last Updated: 17:09 IST(14/5/2013)

A man cannot take away his child from the custody of his estranged wife, the Bombay high court held last week while rejecting a petition filed by a Vadgaon Maval resident challenging a lower court order directing him to handover custody of his minor son to his estranged wife.


Justice Roshan Dalvi rejected the petition citing that the man had taken the seven-year-old boy away from the lawful guardianship of his mother. “Such lawful guardianship cannot be interfered with, except by the order of a competent court,” the judge observed while upholding the order passed by an additional sessions judge at Pune.

The woman, who is legally separated from her husband, had approached a judicial magistrate first class after her husband took the child away in December 2012 However, the magistrate rejected her plea for custody holding that the father is a natura guardian. The woman then challenged the order before the sessions court, which overruled the magistrate court and on April 22 2013, directed the husband to handover custody of the child to his mother. The husband had carried the matter in appeal contending that he is a natura guardian of the child and, therefore, entitled to his custody. “This is correct,” Justice Dalvi said adding, “The mother is equally a lawful guardian.” The judge noted that when the couple separated the child was with his mother.

The judge directed the man to handover the boy’s custody with a warning that the man would invite action for contempt of court if he fails to comply with the order.

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