Child custody : how to communicate urgency to judge?

U/s 151 of cpc

Section 151 of CPC reads

"

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

This section says nothigs about urgent cases - How can I compel judge to hear the custody on daily basis?

In the peculiar stage of the case, you have to approach the local High Court for issue of specific instruction to the Family Court for the out of turn hearing of the case stating therein the emergent situation cited above.

@ Author,

Do following exactly;


1. File an Urgency hearing Application U/s 12, S. 17 and S. 24 of GWA The Act R/w S. 151 CPC.
Reasoning: S. 12 GWA talks about making of Interlocutory orders by concerned Court. S. 17 GWA talks about welfare funda of the child in question along with change in circumstances before concerned Court. S. 24 GWA talks about duties of guardian of a person be it intermediate or final. S. 151 CPC gives very wide extraordinary power to Guardianships Court to make interlocutory Orders and in case concerned Court fails to take notice of this major change in circumstances of welfare of child then under Art. 227 COI concerned HC will take up the case and give you desired relief. There are catena of authorities on Art. 227 COI under such circumstances which can be guided to you later first try the concerned court disposal process on this issue.



2. Parties (respondents) to make: 1. Mother of child – 2. STATE – 3. Local SHO – 4. Concerned Embassy under whose citizenship the child old Passport falls and 5. Local Passport Officer
Reasoning: State is defacto custodian of child in distress (means when his case is on the floor of any court), Local SHO is to be kept informed of foreigners residing under his areas jurisdiction as well as for verification during passport renewal, Embassy bze it is their citizen whose passport has expired, Passport Officer since some application have to be routed through their office



3. Grounds you have to stressful plead: Attach Passport Xerox copy as annexure which shows it to be expired along with your communication to respondent (mother) to either handover the child or handover the expired Passport for its renewal and cite as per Foreigners Resident Act Read with Indian Passport Act a Foreigner Citizen passport needs to be expeditiously renewed as well as informed to local jurisdiction PS to retain the Foreign Citizenship and legal residenceship which is conducive to the welfare of the child irrespective of the outcome of the main proceedings which will take time to dispose off.



4. Specific Prayer you have to make in above Urgency IA: Following prayers to be stressed in sequence and make sure they are mentioned in dates hearing Order sheet of the date of proceeding (make sure of this) and also pray for Dasti uncertified Copy of the Order sheet


(a) Check and register the IA Application with seperate IA No. of the Hon'ble Court
(b) Issue Dasti Notice in all modes along with pasting as well as dasti Notice ot Advocate of the respondent (mother) returnable in 4 weeks time.
(c) Direction to parties for filing reply within 2 weeks and rejoinder if any within 3 weeks with advance copy given to parties.
(d) Come up for final arguments / disposal in 4 weeks.
(e) Production of Passport and 10 Passport size current photos of the child (in xyz background – check with concerned Embassy which background they allow photos submission) and directing respondent (mother) to sign on Passport renewal Form and directing the Petitioner to deposit the renewed Passport into custody of the Hon'ble Court till finality of the concerned case before concerned Court and or as per IA of parties concerning need of Passport release from concerned Court.


If your side is stressful your urgency application work will be done expeditiously otherwise simple prayer upon admission of this IA is to dispose this IA in accordance with Law (welfare of the child) during admission hearing itself.


All the best.

@ Author,

Addendum;

Your one sentences below is misguided thoughts and will not bring any relief believe me and you will end up into expensive jurisdiction of HC U/a 227 COI and unnecessarily your advocate will chew some more fees out of you;

"want to get interim custody immediately so that I can start his passport renewal.


Generally concerned court creates a status quo and will not like to change the interim situation be it on such renewal of passport issue basis, hence donot even say to concerned Court while arguments to grant interim custody of child on a legal question of passport renewal of child. Your child “has rights” to get his citizenship renewed and that is the basic stress here and comes under 'welfare of the child' funda and pray more on ”directing mother (respondent) to cooperate during renewal verification process of concerned Embassy and concerned jurisdiction PS (police station)”. 

Taj,

Thank you so much. I have a couple of questions. I would appreciate if you can give your opinion on them

1.  Passport renewal will not be his 'Ctizenship renewal". Rather it would be his eligibility renewal to stay in india. What should be my pleading then?

2. Why you think local passport office should be made a party - In renewal of his passport, we will have to fill a form given by US embassy, give child proof of citizenship and both of parent signature... thats all is needed. US embassy will not consult local SHO or indian passport office. Do you still think that Local passport office is still a party?

3. I have already filled for interim custody under HMA act. Next hearing is incommig week.  Can I still file this application as suggested?

4. Though I have passport number of my son but I son't have passport zerox. Hope it is not going to be an issue.

Hats  off  for your efforts  to go in details and gving  exemplary guidance.

@ Author,


Since last 3 years I was giving some gyan to a resident US father and his only son's case who is also a US Citizen. During one of our oversight we did not make local Passport Office / SHO party to such Urgency application as similarly guided to you above thinking on the same lines as you are thinking today!


Pops - we later came to know that (respondent) / wife has already made fresh passport (Indian Citizenship Passport) first forging father's (my friends) simple signature on Indian Passport Form as Parent and second a fraud she co0mmitted i.e. without disclosing that the child old passport is a US passport which has expired she did not mention that in Passport Form. That case is currently before HC pending as of now and quite a head are going to roll with its outcome as all parties are made adverse parties / collusion is proved during RTI collected evidences.


Coming back to your case it is always better to make them as party who knows what pops later and you get a stroke on the go ! Just kidding………


IF NDOH is in incoming week then at that time file this Urgency Application and pray for its disposal then and there as per prayers paras suggested. You may add your own discussed with your counsel some more prayers into it.


You may add as additional prayer to direct respondent (wife) to handover to you via your Counsel a Xerox copy of Passport of child....here you may get another surprise like what we got some years back meaning thereby that respondent (mother) pops and says I don't have child passport it was with father of the child when he kicked me out....ha ha so welcome to the world of false and melodramatic family court cases........ to overcome this popping situation some years back we filed Notice to Produce application whereby one of the prayer was to produce original or Xerox copy of Passport of child and then after few months we filed urgency Application to renew the same. So one needs to plan strategy at lightening speed when family cases involved you never know which turn she is going to take place and surprise you.


Ignore my wordings if any on 'citizenship renewal' it is actually meant for renewal of passport and it is obvious that a Nationality has a Passport and once it expires it is renewed and not citizenship which comes as default renewed ! :-)

Don’t go into loops of Law and over technicalities of Laws and mental logics situation in family court cases instead go by "conduct of respondent mother" and "exposing such conducts" keeping the "welfare of child" gun aimed high on parental moral grounds and you are bound to get relief means child will get relief is the way ahead in such situations especially under narrow interpretation of S. 26 HMA. I mean to say that S. 26 HMA if filed for custody is very narrow and does not hold wider scope as GWA The Act.


I now gather your current custody case ought to be U/s. 26 HMA whereby you are praying for custody of child so technically S. 151 CPC application will stand valid and not as advised GWA sections above by me urgency application. I wish you would have clarified in forum while asking under which provisions of Act you are seeking child custody earlier so as to avoid putting wrong Sections as I did above without knowing your case is under HMA the Act and probably before Family Court constituted under FCA, 1984 If you like you may disclose which Family Court (city) There are specific persuasive Judgments from that States Division bench which may help you later.


However technically Article 227 COI still stands good in case your this urgency application is bumped off on admission stage so talk to me if ever that stage ever comes !


All the best once again.


Show result now ....that you have acquired some gyan from the Forum………..


PS.: 
I may not reply further to this thread as I have come to giving 3 replies to same message a self limit and let other experts pool in their gyan if any.

Taj,

My case is in Muzaffarpur, Bihar  court. If you have any judgment, please send those details to me. -- I will respect your self imposed limit of three replied to a thread.. I can receive these case details through PM... Though I feel that three replies has not reached yet.. as one of your replies was addendum... and not a reply and you can not take benifit of your own worng.. .... JUST kidding.

Rest assured I am going to submit  urgency application and   put my best effort to ensure welfare of the child . Will keep you posted on the progress.

Regards,

Avinash

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