Ravi 23 October 2017

My youngest son is in danger. please help me.

Dear Sirs/Madam,

please see my last post (https://www.lawyersclubindia.com/forum/Wife-not-allowing-to-meet-3rd-son-youngest--154919.asp)

Subsequent Events

1) 14th Oct 2017: Wife again refuses to give my youngest son to us for the weakend stating that its not his will.

I again approach the police station & give an application seeking their help. Police tries to counsel her father.

This time her father gets angry on the police ASI & asks him that on which court's order he has come here? (her father is a politically active person).

The police ASI advices me that I have to seek help from court to get police help. (We have already filed for "Compliance of the orders"). The ASI also states that in future he can only give help if there are such orders from the Hon'ble court to the Police.

2) School Vacation starts from Tuesday, 17th Oct to Saturdat, 21st Oct for Deepawali.

So, now we have 50% of the vactions to keep him with us. We also intend to celebrate Deepawali alongwith our yougest Son.

So, on 19th Oct 2017 at around 17:30 hours we (me & two elder sons aged 14 & 10, A1 & A2) approach her parental residence, (I had been trying the whole day to call her to discuss timings but she has blocked all our phones). I was having aprehension that she would not allow A3 with us, so we took Deepawali crackers, sweets gifts etc. with us.

3) Celebrating Deepawali: We were there uo to 20:30 Hrs (approx), outside their government residence apartment (her mother is a nurse at govt hospital). All the three kids used fire crackers & played & danced in the light, though she never left the sight of A3 & was intimidating him again & again with her eyes whenever he was becoming very playful with other two kids.

4) The worst Part: The last three minutes of the visit.

She asks us to leave. I try to remind her that today is our day to take A3 with us & I request her that atleast let him be with us for some more time. She reiterates her stand & asks us to leave. I pick up A3 in my arms to kiss him (he was sitting & playing with his two brothers A1 & A2). She probably thinks that I might have pick him to run away with him. She pushes me strongly on my shoulder & crosses my legs with her foot (like on www fighting games). I loose my balance & start to fall flat on my face. To avoid injury to my son A3 who is in my lap, I try to bend my knees and fall sideways. I get badly hurt on my right leg. She snatches A3 from my lap & shouts for her father. Then all I remeber is that some blows coming to my chest & on head.

By the time I get up & back to my senses I see that She is inside the room with A3 & she along with her father is shouting at me. I switch on the video recording of the mobile & also inform her that I am video recording the event. Her tone changes. She changes from "tu" to "Aap" but starts making baseless allegations on me. During these three minutes her father would come out from door and hit me & agin go back inside the room (its a see through door with wire mesh to prevent flies). These three minutes devastated the entire blessed momnts we had with A3.

5) I inform my Lawer about the incidence. He advises to approach the police station & file a FIR. I do accordingly & a medical is done at the district main hospital. There is a police chauki near the place of incidence (about 2 Kms) but since her father is a local worker for a MLA & because her mother is a nurse at the local hospital I prefer to go to the main Police Station where SHO sits (about 15Kms from the place of incidence) & that police station takes me to Main Hospital for medical.

6) The medical confirms my injury on the forehead as "contusion" & bruising on my right leg but also states the injury as "simple" as there was no fracture & hence no criminal offence but a civil matter (as they told me), hence no FIR but just a police complaint. They call me next day to collect the copy of MLC.

7) Next day when I went to the Police station I was informed that my wife & her father has also filed a FIR against me the same night at their local Police Chauki (which is under this police main station/SHO). They have levelled IPC 451, IPC 323 & 504 on me.

She also got a medical done from the hospital where her mother works. She has claimed that I have beaten her up (I did not even touch her). Her medical also states normal injury (as I was told). Her father has claimed that I have used bad words to him where as it was him who has used all bad language possible in India. I have the video recording of this incidence.

My questions:

1) Can order 39 rule 2a be used in a Child Custody/visitation rights matter, as this has been advised by my lawyer. Whereas I have read that Application under Order 39, Rule 2A of the Code is maintainable only when there is disobedience of any `injunction' granted or other order made under Rule 1 or Rule 2 of Order 39

2) Will a contemt of court application (Contemt of courts act 1971) be better way to proceed or Application under Order 39, Rule 2A of CPC or both.

3) Will the refusal by A3 sufficient cause for her to disobey the orders from the District court. A3 was living with me about a year back when CJM court handed him to her (without any case for custody), she promised visitation rights that time but never complied hence I had to file for custody. (A3 is pressurised by wife to say "no" to me when I come to visit him but in alone moments he has confirmed that he wants to come with us)

My youngest son is in danger. Please help me. (she has tried with the safety of kid's lives in the past when we were living together)

Thanks in advance

ravi

Reply Follow

3 Replies

(Guest)

File an application before the jurisdictional district court u/Section 43 of 1890 Guardian and Wards Act . As your youngest son is your ward, you have legal visitation rights under the Act. Get a court order from your district court/Magistrate's Court where you are currently residing. If your son is a Hindu minor and under five years old, you can also file a parallel application for visitation rights u/ 1956 Hindu Minority & Guardianship Act, as both these laws are read together..

Your wife and her family cannot prevent you from visiting your son, as it is very clear from the 1956 Act, as well as your facts that your wife is neglecting the welfare of your offspring by denying you visitation rights..

If this problem persists, file an injunction order u/Order 39 Rule 1 CPC restraining your wife and her family from having access to your child . Specifically allege that your wife and your in-laws have conspired to deny you visitation rights of your offspring. Keep copies of the medical report wherein it was proved that you suffered battery injuries caused by your wife and her family. Get the court order first, as you can produce it as a legally binding document if the police try to act funny in tandem with your wife's family.

For further queries, you can PM me or e-mail at: basu_kunal@hotmail.com

Regards

Advocate Kaybee

Ravi 24 October 2017

Dear Sir,

Thank you very much for your reply.

Do we have to first apply for an injunction order u/order 39 Rule 1 CPC or can we apply under order 39 Rule 2a for disobedience of orders of visitation rights granted under Guardians & ward act.

Adv Radhika Mehta (Advocate) 27 October 2017

Hi Ravi. Very sorry to hear about the entire unpleasant incident. This is a rather tricky situation that you are caught in and i can only imagine how difficult this must have been for you.

I agree with you that Order 39 Rule 2A will not be very effective in your case but then even with Contempt, nothing much will be able to be achieved. However, you can definately try filing a Contempt. What you need to do is actually play smart. You should not have informed her that you are filming the entire incident and should have caught her unaware. You should have also immediately moved the Court and mentioned that despite an order being there, you have not been provided access. However, do file another Affidavit before the Court on the next date of hearing putting on record all these facts.

As far as A3 consent is concerned, the Court will definately consider the fact that the child has been staying with the monther since the last one year and that therefore the possibility of him being brainwashed by her is high. To combat that, start clicking pictures of happy moments in whatever limited time you get with him.