One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: Counseling in custody proceedings under the Guardian and Wards Act (GWA) is primarily aimed at facilitating settlement between the parties. The counsellor's notes and opinions are confidential and do not form part of the court's evidence. Your focus should remain child-centric and respectful, but you can and should calmly present objective evidence if the other parent makes false allegations. The court alone decides custody based on the child's welfare.
Key Facts of the Case
- The father filed a custody petition under the Guardian and Wards Act, 1890 for his three-year-old daughter.
- A criminal case under Section 85 BNS (previously Section 498A IPC) was filed by the mother, with the father obtaining anticipatory bail.
- Critical CCTV footage showing the mother's assault on the father was submitted as evidence in the criminal case per court order, with proper panchnama and certificate under Section 61A of the Bharatiya Sakshya Adhiniyam, 2023.
- During the first counseling session, the counsellor spoke to each parent separately — the father remained respectful and child-focused, while the mother appeared visibly distressed and presented one-sided documents.
- Under the relevant High Court rules for family counseling, information gathered by the counsellor is confidential and cannot be disclosed to court without both parties' consent.
- The counsellor's role is limited to exploring settlement — not adjudicating on the merits of evidence or making recommendations on custody.
- A joint counseling session is scheduled next, and the father must decide whether to present the assault footage or remain restrained.
The Direct Legal Answer
Here's the thing — counseling under the GWA is not a trial. The counsellor does not decide who is a better parent. The counsellor's sole job is to facilitate communication between the parties and report back to the court whether a settlement is possible. The law is clear: notes, statements, and reports of the counsellor are confidential. They stay in sealed packets. The court cannot rely on them as evidence unless both sides agree.
Should I expose my partner's lies in the next counseling session?
Yes — but not to "win over" the counsellor. Your goal is to set the record straight if the other parent is making false claims that could affect the settlement process. Calmly place relevant evidence — like the CCTV footage or medical reports — before the counsellor. Frame it as: "This is important context for understanding why the child's welfare requires my involvement." Keep the tone child-focused. Don't attack. Just correct.
Will the counsellor's opinion influence the court?
No. The court decides custody based on evidence on record — not the counsellor's impressions. However, if a settlement is reached and signed by both parties and countersigned by the counsellor, that settlement can become a consent order. So the real value of counseling is in reaching an agreement, not in persuading the counsellor.
Advice in Such Cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Second, document everything. Keep a diary of every interaction — date, time, what was said, who was present. This becomes crucial if the other side twists facts later. Third, never discuss the case on social media. A careless post can be used against you. And make no mistake, this type of matter — overlapping criminal and family law — requires an advocate who regularly handles both. A general practitioner may miss the interplay between the criminal evidence, the custody petition, and the counseling process. Domain-specific experience matters here.
Applicable Sections of Law
- Guardian and Wards Act, 1890 — Section 7: The court's jurisdiction to appoint or declare a guardian for a minor's person or property, considering the child's welfare as paramount.
- Bharatiya Nagarik Suraksha Sanhita, 2023 — Section 175: Provisions relating to filing of private complaints before a Magistrate if the police refuse to register an FIR.
- Bharatiya Sakshya Adhiniyam, 2023 — Section 61A: Admissibility of electronic records, including CCTV footage, with proper certification and panchnama.
- Hindu Minority and Guardianship Act, 1956 — Section 6: The natural guardian of a Hindu minor is the father, and after him, the mother. But the welfare of the child overrides any statutory presumption.
Punishment and Penalties
This is a civil custody matter under the GWA, so there are no criminal punishments involved. However, the underlying criminal case under Section 85 BNS (cruelty by husband or relative of husband) carries a punishment of imprisonment for up to three years and a fine. It is cognizable and non-bailable in nature, though bail is typically granted at the discretion of the court. The offence is compoundable with the court's permission.
Jurisdiction — Where to File the Case
For a custody petition under the GWA, the proper forum is the Family Court or the District Court within whose jurisdiction the child ordinarily resides. This is determined by Section 9 of the Guardians and Wards Act, which gives concurrent jurisdiction to the court where the minor lives or where the minor has property. Pecuniary jurisdiction is unlimited for family courts. For the criminal case under Section 85 BNS, the FIR must be filed at the police station having territorial jurisdiction over the place where the alleged offence occurred. Understanding jurisdiction is critical — a petition filed in the wrong court will be returned, delaying the matter by months.
What if Police Refuse to File FIR?
- Approach the Superintendent of Police under Section 173(4) BNSS with a written complaint.
- If the SP also refuses, file a private complaint before the Magistrate under Section 175(3) BNSS.
- As a last resort, file a writ petition before the High Court seeking direction to register the FIR.
- Keep a dated acknowledgment of every complaint you submit to the police.
Rights of the Accused
- Right to remain silent — you cannot be compelled to be a witness against yourself (Article 20(3) of the Constitution).
- Right to legal representation — you have the right to consult and be defended by a lawyer of your choice (Article 22(1)).
- Right to be produced before a Magistrate within 24 hours of arrest (Article 22(2)).
- Right to a copy of the FIR and to know the grounds of arrest.
- Right to apply for bail — anticipatory, regular, or default.
Bail Provisions
Under Section 85 BNS, the offence is non-bailable, but bail is routinely granted at the discretion of the court. Anticipatory bail under Section 482 BNSS can be sought from the Sessions Court or High Court before arrest. Regular bail under Section 480 BNSS is applied for after arrest. The court will consider factors like the severity of the allegations, the accused's criminal antecedents, and the likelihood of tampering with evidence. Having clean conduct and strong documentary evidence (like the CCTV footage) strengthens the bail application significantly.
Quashing of FIR / Case
The High Court has inherent powers under Section 528 BNSS to quash an FIR or criminal proceedings if they are an abuse of process of law. Grounds include: the allegations do not make out a prima facie offence, the matter is essentially civil in nature, or the parties have settled the dispute and the offence is compoundable. Quashing is a viable strategy where false allegations are made in the context of a matrimonial dispute, especially when there is independent evidence contradicting the complaint.
If You Are the Victim
- Preserve all evidence — CCTV footage, WhatsApp chats, voice recordings, medical certificates, photographs of injuries.
- File a police complaint immediately — delay can be used against you.
- Apply for a protection order under the Protection of Women from Domestic Violence Act, 2005, if applicable.
- Seek sole or interim custody of the child if the other parent is a danger to the child's safety.
- Maintain a diary of all incidents with dates, times, and witnesses.
Documents You Must Keep Ready
- Identity proof — Aadhaar card, PAN card, passport, voter ID.
- Marriage certificate and child's birth certificate.
- CCTV footage with proper panchnama and Section 61A certificate under BSA, 2023.
- Medical reports and injury photographs, if any.
- All correspondence — emails, WhatsApp chats, SMS, call records.
- Bank statements and property documents (for maintenance or custody purposes).
- School records of the child, if the child is of school-going age.
What Evidence Is Required?
- Primary evidence: Original CCTV footage, signed affidavits, original medical reports.
- Documentary evidence: Police complaints, FIR, chargesheet, anticipatory bail order.
- Electronic evidence: Properly certified and imaged digital data as per BSA, 2023.
- Witness testimony: Neighbours, family members, or independent witnesses to assault or harassment.
- Expert evidence: Psychologist or counsellor reports (if admissible with consent under GWA rules).
- Child's preference: If the child is old enough (usually above 9 years), the court may consider their wishes.
How the Police Behave in Such Cases
In matrimonial disputes, police typically favour the complainant — often the wife — due to the protective nature of laws like Section 85 BNS. The investigating officer may not give the accused a fair hearing at the initial stage. They tend to arrest first and investigate later. That's why anticipatory bail should be sought immediately. And here's the critical part: if you have strong counter-evidence like CCTV footage, present it to the IO at the earliest. The IO is bound to include it in the chargesheet. A well-documented defence shifts the dynamic significantly.
Timeline of Legal Process
- Criminal case: FIR registration (same day) -> Investigation (2-3 months) -> Chargesheet filing (within 60-90 days for cognizable offences) -> Cognizance by Magistrate (1-2 months) -> Framing of charges (1-2 hearings) -> Trial (6-18 months) -> Judgment (1-2 hearings) -> Appeal (if any, 6-12 months).
- Custody petition (GWA): Filing of petition (Day 1) -> Notice to opposite party (2-4 weeks) -> Written statement (4-6 weeks) -> Mediation/Counseling referrals (2-3 sessions over 2-4 months) -> Evidence (3-6 months) -> Arguments (1-2 hearings) -> Judgment (1-2 months).
- Total duration for custody matters: 6-24 months, depending on court backlog and settlement attempts.
How Long Will the Investigation Take?
Under BNSS, the police must complete the investigation and file the chargesheet within 60 days for offences punishable with up to 3 years imprisonment, and within 90 days for offences with longer terms. Section 85 BNS falls in the longer category, so the police have up to 90 days. If the chargesheet is not filed within this period, the accused gets a default bail under Section 187 BNSS.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes, custody matters are often settled through mediation or counseling. If both parents reach an agreement on custody, visitation, and maintenance, it can be reduced to writing, signed by both parties, and countersigned by the counsellor. This settlement can then be placed before the family court, which may pass a consent order. For the criminal case under Section 85 BNS, the offence is compoundable with the court's permission. Settlement is generally advisable when both parents genuinely prioritise the child's welfare. It saves time, money, and emotional strain.
Common Mistakes People Make
- Engaging a lawyer who does not regularly handle family law or matrimonial cases — domain-specific experience affects procedural strategy, evidence handling, and outcome in these nuanced matters.
- Posting about the case on social media — every post can be used against you as evidence of bad character or harassment.
- Destroying or losing evidence — deleted WhatsApp chats, lost CCTV footage, or discarded medical reports weaken your case irreparably.
- Confronting the other parent without your lawyer present — anything you say can be twisted and presented in court.
- Ignoring court orders or skipping counseling sessions — non-cooperation is noted by the court and can prejudice your case.
FAQs People Normally Have
Can the counsellor's opinion affect the custody decision?
No. The counsellor does not adjudicate. Their role is limited to facilitating settlement. The court decides custody based on the child's welfare, evidence on record, and applicable law.
Should I bring evidence to the counseling session?
Yes, but only to correct false allegations or provide context. Do not treat it as a trial. Present evidence calmly and focus on the child's welfare.
What happens if no settlement is reached in counseling?
The counsellor reports back to the court that no settlement was possible. The case then proceeds to evidence and arguments like a regular contested matter.
Can the other parent use my counseling statements against me in court?
No. The rules of the High Court make counseling statements confidential. They cannot be used as evidence except with the consent of both parties.
Is it true that a mother gets custody automatically under Indian law?
No. The law presumes both parents as natural guardians, but the child's welfare is the sole consideration. Courts do not automatically give custody to the mother. For children below five years, there is a preference for the mother, but it is not a rigid rule.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India