How to take the Custody of children at the judicious discretion of the court?

The custody of children under Section 41 of the Act is left to the judicious discretion of the Court. It may be noted that Section 41 deals with the case in which the Suit or Petition is pending before the Court.

Whereas Section 42 deals with the eventuality in which case, the Suit/Petition is not pending but finally disposed of inasmuch as the Decree of Judicial Separation is passed. While Section 42 deals with Judicial Separation. Section 43 deals with (i) Dissolution/Divorce and (ii) Decree of Nullity. Section 44 originally was concerned with the confirmation by High Court of the Decrees passed by the District Courts. However, after Amendment, Section 44 has lost its significance.

Nevertheless, instead of deleting the provision, only the portion relating to confirmation is deleted and the rest of the provision is retained but without any purpose. It will thus be seen that Sections 41, 42, 43 and 44 deal with custody of children in different eventualities. Therefore, so far as the ‘Power of Courts’ is concerned, it remains the same. Thus, requirements of Section 41, 42, 43 and 44 are similar. The Requirements of these provisions are as under:

(i) Husband or wife should have filed a Suit for Judicial Separation.

ADVERTISEMENTS:

(ii) The Court can pass interim orders from time to time in the said suit pending before it, in respect of:

(a) Custody of Minor Children whose parents are litigating before the Court.

(b) Maintenance of Minor Children whose parents are litigating before the Court,

ADVERTISEMENTS:

(iii) The Court can make provisions in the final Decree of judicial separation in the said suit pending before it, in respect of:

(a) Custody of Minor Children whose parents are litigating before the Court.

(b) Maintenance of Minor Children whose parents are litigating before the Court,

ADVERTISEMENTS:

(iv) The Court, if it thinks fit, can also direct proceedings to be taken for placing such children under protection of someone as per its direction.

(v) As far as possible, the Court shall dispose of the Application for maintenance and education of minor children within sixty days from the date of service of Notice on the Respondent.