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Prakash (IT Specialist)     17 April 2011

Need help in seeing my child....Am in a huge mental stress

Am Prakash, My wife went away from me couple of years back. I have a kid of 7.5 yrs. old. She also took my kid with her while going. I filed RCR in Pondicherry court 8 months before. My wife hasn’t responded for my petition. I also got an order favoring my prayers. Then I filed Child Custody petition (GOP). For the past couple of hearings I haven't turn-up as I was in DK. Mean while we (I and my lawyer) were waiting for her to file the counter. But she didn’t come. On 15th Feb. 2011 I went to the court. She didn’t come. They asked me to come for counseling on 16th Mar. 2011.

I went to the court on 16th March 2011. Again same scenario, she didn’t turn up. In this case I asked my lawyer to file an Interim Custody for my child. We filed the interim custody on 24th March 2011 and I got the next hearing on 4th April 2011. Right from the beginning (RCR) she is not responding for me.

Now am in a huge mental stress. I want to see my kid at any cost. I went to court on 4th April 2011 and there is no change. They just gave me another date on 19th April 2011. The court is so careless. Am in Chennai and the hearing is happening in Pondicherry which is 130 KMS away from my place. Every time am travelling 260KMS without any result. It’s getting hectic for me now. She is so cool that she is not attending any hearings even after she got the entire summons in hand. I also requested few of relatives (Including my parents) to speak to her and her family. But no go. “She clearly said that she didn’t want to live with me and no one can touch the child.

Now am left nowhere. It’s almost 2 years since I saw my kid. Am in a huge mental stress. If this continues I will definitely go mad.  I don’t know what to do. Please HELP.

 

1.      Can I sue her for not responding to the court?

2.      I want to see my kid immediately, what should I do to achieve that?

3.      What will happen to the Interim Custody petition and my GOP?

4.      How long I should wait for the order responding my prayer from the court?

5.      Even if the order comes I can’t go to her house to take the child as it will become a problem for me and my kid, What should I do in this regards?

6.      What should I do and how I need to move further? Please advice.



Learning

 15 Replies

Arup (UNEMPLOYED)     18 April 2011

Can I sue her for not responding to the court?

 

---   COMPLAIN IT IN THE COURT.

PRESS FOR EX PARTY.

Arup (UNEMPLOYED)     18 April 2011

I want to see my kid immediately, what should I do to achieve that?

---   PRAY FOR VISITATION RIGHT, WHERE YOUR CASE PENDING.

Arup (UNEMPLOYED)     18 April 2011

Even if the order comes I can’t go to her house to take the child as it will become a problem for me and my kid, What should I do in this regards?

 

 

---   PRAY IN WRITING AT COURT ABOUT YOUR PROBLEM.

THEY WILL ARRENGE IT.

IF NECESSARY POLICE WILL BE GIVEN.


(Guest)

( I am no lawyer, just giving common sense inputs to your situation.)

1. Learned Arups comments have legal wisdom.Leverage in toto.

2. Additionally, you can do the following which will make your case stronger:-

(a) Go to a Psychologist for counselling. Share your mental agony with the counsellor over not being able to see your child. Children of divorcing / separating parents have a right to meaningful relationship with BOTH PARENTS. Children have a right to bond with BOTH PARENTS equally. 

(b) File for child abduction case. 

(c) Find out any loophole where she can be portrayed as a abusive spouse and mother. Does she hit the child. Are there any neighbors or witness who can testify that the mother is a bad parent and lacks parenting skills.

(d) Has the separation caused the mother to indulge in immoral/illegal activities. ( You get the message ? ) either for money or for support ? In the light of bringing up a child, how do these activites impact child development ? 

(e) Find out the school the child attends - hire a detective. Write to the school teacher with utmost politeness seeking childs progress. 

(f) Write a formal polite letter under registered AD to the mother requesting to provide childs medical / health documents, academic progress reports for your review. Request mother to permit you phone contact with the child. 

(g) Send a parcel of books and toys for the child and request mother to acknowledge receipt. 

(h) Write letters to the child and keep copies.

Collect documents for all the above activities.

----------------------------

Now, package 1 + 2(a) to 2(h) and present a strong case for child custody, visitation. 

Ambika (NA)     22 April 2011

Abduction plea will not sustain at all.

Trying to find out illegal activities of mother....finding loopholes in parenting skills: if there is no proof of illegal activities and if nothing serious about parenting skills  which is affecting child's grwoth --after all who has perfect parenting skills?-- too will fall flat.

School reports : if the child is not doing well in one or two subjects , it will not go against the mother--which child will not hav e problems in some subjects and would be good in other subjects!

School is  not obliged to send separate reports about child to father in this case, unless the court directs school to do it.

You can pray for visitation rights. You can mutually agree for a nuetral place for you to meet your child, at least to begin with.

For interim custody, you have to keep your fingers tightly crossed, as mother would have her own arguments to counter your prayer for interim custody., Child 's wishes also would be taken into account.

 

1 Like

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     23 April 2011

U CAN FILE AN APPLICATION FOR THE VISITATION/MEETING RIGHTS WITH THE CHILD/CHILDREN. Court would surely listen to u.

Tajobsindia (Senior Partner )     23 April 2011

@ Take:

1
. A non – custodial Parent has a right to meet his / her child (PERIOD).
1.2 You as a FATHER need to wake up to re-claim your parental rights come what may be (THAT IS THE WAY OUT)
1.3 Only a crying baby gets milk ! (observe a breast feeding mother, she never feeds a child unless a child cries – so take natures clue from there now that you are blessed fatherhood)


@ Legal:

1. You as a father is afraid to meet a 7.5 years old child who is in illegal custody of mother ?

2. File a memo to court to dispose visitation Application as ex party. File an execution petition and base don terms of disposal approach PS of mother and take police escort to visit the child.

3. The abridged legal reasoning in presented brief are as follows;
 
This right of the Courts, have been guaranteed to the children across the world through various legislations including the concept of PARENS PATRIAE based on the best interest of the child in the AMERICAN LAW and THE ENGLISH LAW, and differently in other countries.


The State Interest:
Parens Patriæ is the doctrine under which the state alleges an interest in the care and custody of children (and others not competent to represent their own interests). This doctrine, literally asserting that the king is the parent of the state, was formulated in England in the thirteenth century to assert the state’s role as guardian of those who were mentally incompetent. The notion that the king (or the
government) is the parent of the entire state is quaint; the assertion that the state has a compelling interest in the care, nurturing, and

……….The classical interpretation, for example, might appear to receive support from the fact the rights of parents over their children are limited, potentially override able, fiduciary rights. For suppose that, ab initio, these rights reside in the state under the doctrine of parens patriæ and are entrusted by the state to the natural or adoptive parents. This seems to explain nicely the fiduciary aspect of the rights, why the rights are limited and why the state retains the right to judge when the parents have violated the trust. The state, on this account, is the trustor. As such, the state can set the terms and limits of the trust relationship, specify the ends for which it is constructed, and retain the right to determine when it has been violated.

 

………..Does not the state have, under the doctrine of parens patriæ, a responsibility to exercise parental rights for the benefit of the children? Can the state, unlike the parent, do no wrong in the exercise of its parens patriæ authority? Are there no limits on this authority? I believe that the state is at least as bound by considerations of the interest of the child as are the parents. The state’s right over children is both limited and non-absolute, as is the parents’.

(Re.: “PARENTAL RIGHTS AND DUE PROCESS” THE JOURNAL OF LAW AND FAMILY STUDIES VOLUME 1, NUMBER 2 (1999), pp. 123–150 UNIVERSITY OF UTAH SCHOOL OF LAW)


Indian Position of Law:

The Hon’ble Supreme Court has reiterated its role as PARENS PATRIAE in case of such children in its judgments quite recently.


Re.: Contempt Petition (Civil) No. 394 of 2009

In Dr. Rajesh Ranjan Vs. Dr. Anupama Tandon & Anr.

Date of decision: 30-11-2010


CASE NO.: Special Leave Petition (civil) 4230-4231 of 2003

      PETITIONER: Kumar V. Jahgirdar

      RESPONDENT: Chethana Ramatheertha

      DATE OF JUDGMENT: 01/29/2004

      BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

      JUDGMENT BY: Dharmadhikari J.

     
The Hon’ble Supreme Court had remarked:

 

“The High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however, taken a different view and reversed the judgment of the Family Court. On the basis of evidence on record, the Division Bench of High Court has formed an opinion that in the absence of compelling reasons and circumstances, the mother cannot be deprived of the company of the child to the detriment of the interest of the child. The High Court, therefore, set aside the judgment of the family court and directed that the mother should continue to retain exclusive custody of the child with visitation rights to her former husband. The former husband is allowed to keep the child on week ends either on Saturday or Sunday from morning till evening and he can also be with the child during half the period of vacations in the school. The stay of child with each of them during half of the vacations, is to be shared by the two parents under mutual agreement. The father is also allowed to visit the child as and when he likes with the prior intimation and mutual arrangements with the mother. The parties are also given liberty to seek necessary modifications in the arrangement evolved by the High Court.

With the above observations and modification, we maintain the judgment of the High Court.”

 

Civil Appeal No. 3500 of 2008 [Arising Out
          of S.L.P. (C) No. 31324 of  2007) BENCH C. K.
          Thakker & D. K. Jain CASES REFERRED TO
          Rosy Jacob v Jacob A. Chakramakkal 
1973
          Indlaw SC 120
ACTS REFERRED: Guardians
          and Wards Act, 1890
[s. 10, s. 25];                            
         
Hindu Minority and Guardianship Act, 1956

                   The Judgment was delivered by: Hon’ble
                   Lordship Sh. D. K. JAIN

Granting custody to the father the court made
the following directions in para;

“3. The appellant will also allow the child to live with the mother during school vacations or on appropriate occasions.


4. Master Satyajeet shall be allowed to attend and participate in family functions/festivities subject to his school attendance and examinations etc. which are held in the family of her mother or during any other occasions as jointly agreed to by the both the appellant-father and the respondent- mother.

5. Any other further arrangements mutually agreed to between the appellant-father and the respondent- mother in the interest of the child."

Consequently, the custody of the child was restored to the father. It is this order of the High Court which is under challenge in the present appeal.

15. In Rosy Jacob Vs. Jacob A. Chakramakkal1, a three- Judge Bench of this Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of  1973 Indlaw SC 120 welfare of the minor children and the rights of their respective parents over them.

"809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other." * 

The order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court, as noted above, also do not require any modification. We, therefore, affirm the order and the afore-extracted directions given by the High Court. It will, however, be open to the parties to move this Court for modification of this order or for seeking any direction regarding the custody and well-being of the child, if there is any change in the circumstances.”

 

IN THE  HIGH COURT OF DELHI AT  NEW DELHI

SUBJECT: CRP No.276/2003

Date of Hearing :  March 15, 2004.

Date of Decision:   April  12, 2004.

Hindu Marriage Act  1955 -Custody of the
Minor Child Paramjit Singh Lamba    Vs. Smt. Prabjot Kaur                

CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT  SEN

                                     

“The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent.  Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality.  Every child requires exposure to and influence of both his parents.

It is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents.”   

IN THE HIGH COURT OF JUDICATURE AT
         
MADRAS

DATED:    24.04.2007

CORAM :THE HON'BLE MR. JUSTICE S.
            ASHOK KUMAR

CRP. PD No.439 of 2007 and Tr. CMP. No.79 of
          2007

Hari Narayanan Vs. Meenakshi Narayanan                  

“…..The minor child is now aged 5 years. It is also to be noted that when on the earlier occasion the respondent came to India to attend the proceedings in the Divorce Petition filed by the petitioner, she had left the minor child at USA and therefore, it cannot even be contended that the minor child cannot live separately from the respondent / mother, the respondent for a temporary period.

………..The anxiety of the grand parents to see the grand child cannot be determined in terms of money. The parents of the petitioner are in the evening of their life.  Therefore, their anxiety to see grand child requires paramount consideration like the welfare of the child which also requires paramount consideration. Therefore, it will be only proper to direct the respondent to bring the child to India without any resistance taking refuge under the ex parte orders of the Superior Court of California, which is not binding either  on the respondent or the Courts in India

……. In the above circumstances, the respondent is directed to bring the minor child Raahul Narayanan for stay at Chennai with the petitioner, father of the child, for one week during Christmas holidays and two weeks during summer holidays between June, July and August 2007. All the expenses for travel and stay of the respondent and child for the said purpose shall be borne by the petitioner himself.”

CASE NO.:      Appeal (civil)  6626 of 2004                                  PETITIONER:            Sheila B. Das

RESPONDENT:           P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: ALTAMAS KABIR, J.

 

“On a consideration  of  the  provisions of Section  17 (3) of the Guardians and  Wards Act, 1890, it was also held that a minor's preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the  question of custody.


Reference was also made to another decision of this Court in the case of  Kumar V. Jahgirdar  vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the  minor child, the mother, who had re-married, was given custody of the  female  child  who was on the advent of puberty, on the ground that at such an age a  female  child primarily requires  a mother's care and attention.  The Court was of the view that  the absence of  female company in the house  of the father was a relevant factor in deciding  the grant of custody of the  minor female child

The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled between the parties.

 

MOTHER’S acts are a clear violation of the rights of the child as enshrined in UN Convention on the Rights of the Child (Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force on 2nd. September 1990, in accordance with Article 49 and ratified by India), which is openly being flouted by the mother.

American position of Law:
The same provisions of law and the role of the State as a guardian is revisited in portions of the article titled “ARBITRATION OF CUSTODY AND VISTATION DISPUTES” published in the NEW YORK LAW JOURNAL, Oct 25, 1994


The position is further clarified in yet another article titled “The Child in Court: A Subject Review” published by  the “Committee on Psychosocial Aspects of Child and Family Health” in the  AMERICAN ACADEMY OF PEDIATRICS PEDIATRICS Vol. 104 - 5 November 1999 (pages 1145-1148).

POSITION IN THE AUSTRALIAN LAW:

parenting plans

 

2.21 As a consequence of Schedule 1 of the Family Law Amendment Act 2003, parenting plans are no longer required to be registered. However, provisions of this division of Part VII are still applicable to the variation or revocation of parenting plans. The court may register a revocation of a parenting plan if it considers it appropriate to do so “having regard to the best interests of the child to whom the agreement relates” s 63E(3).

 

POSITION IN THE CANADIAN LAW:


Download from the website of the Canadian Ministry of Attorney General www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/section2.pdf

 

POSITION IN HONG KONG LAW:

 

2.147 The court can use its parens patriae jurisdiction to protect children when there is a conflict between the interests of the child and those of a parent or parents. Lord Esher MR in R v Gyngall 1998 described this jurisdiction quite well.

Ambika (NA)     24 April 2011

@ legal experts in LCI inciuding Tajobsindia

A child living with mother for a couple of years:

is s/he considered in illegal custody of mother? She had taken child with her this is what the author says and the author did not raise hue and sry of illegal custody those couple of years back. If the author assumes the child was in illegal custody or the child was abducted, he should have taken urgent and immediate action, as we naturally will not tolerate a day of our child being in illegal custody and in a state of abduction.

How the plea of illegal custody of child with mother would sustain in this scenario?

 

Tajobsindia (Senior Partner )     24 April 2011

@ Ambika


Your que. is innocently OK only for laymen's point of view and does not sustain legally. Ld. Advocates who propagate here that child is only best in mother’s lap have no idea how good and or detrimental bad that same mother’s lap is all about as is evident from various findings of various Indian Court of Law till date. A Child custody be it including visitation to non custodial parent revolves around 'original ordinary jurisdiction of child" which means where child was born and lived initially till its removal by either parent. In instance case child was born to the query couple and lived with the couple till its removal by child's mother. A child is not a toy to play by either parent and be removed at whims and fancies and for that you need a express Court Order which custodial parent especially mother’s never bother to approach first.


Hence the non custodial parent cries like this chap who says and I quote him “I want to see my child at any cost” further I quote his baseless litigation instituted i.e. RCR to seek visitation of child ! No parent gets to see a child on mere filing of RCR ! With RCR you either make your other spouse return to matrimonial home that also willingly and or with addendum filing that of a petition U/S. 26 HMA R/w S. 10 FCA you approach same Court for express interim orders on child visitation meantime even exParty such Orders can be granted and later all the JD party has to do is to Execute it. This legal remedy this author fails miserably to understand by whomsoever legal opinion he took till date. However, knowing well what his reverse litigation is assumed to be about I omitted answering directly this legal remedy and instead tried to teach him the various Laws especially the great doctrine of
PARENS PATRIAE which comes into play once a child is born be it noted on tombstone by laymen’s and experts alike here. Even Madras HC recent Judgment talks of this doctrine explecitly coupled with medical literature on subject matters.


Now, once a child is removed from its ordinary residence without any Court order the que. of 'illegal custody' pops and it sustains till fitness of natural guardian be it etiher mother and or a father (i.e. suing party) is announced by a competent Court.  Take these sentence as tombstone and still in doubt then first read commentaries of late Prof. Paras Dewan to Mullas on definition of “illegal custody' in child matters, then I prefer to discuss further especially with you. Also pay attention to several of the child custody precedents as well as valid preferential legal opinion "any contract entered by adults on behalf of a child is null and void which also includes child's illegal removal from h/er original residence without approval of a competent Court”.  


Today this father has raised visitation que. what he wants to raise legally is it not true! If so, then all child custody / visitation legal chapters U/s 10, 12, 17 and 25 GWA R/w S. 6 (a) HAMA R/w S. 8 and 10 FCA opens up since a child is custodial of STATE and not that of either of the parents till s/he attains majority age. However, no social person (here either parent) can be expected to take immediate legal remedy which is called benefit of doubt in sensitive family law matters be it even HCP when que. of illegal custody is writ remedied even before HC’s and showcausing good cause even some of the HC's have entertained HCP on post 2 months delay period after illegal removal of child social que. were well plead by appearing counsels to the petitioner side.


Hope all your three major que. raised are answered ? Further reasoning, I don’t want to invest time with writers who mid way raise hands and say either I am not a legal person and or I don’t want to discuss further as is evident with your interaction with me in recent past.


well, ignore such large writing if you don’t want to read them and then mis-understand the legal logics but don’t make a comment that either my English you people don’t understand and or raise a innocent que. why I write so large piece of wisdom here. I don’t write here to please people like you who create mischief.

Ambika (NA)     24 April 2011

Thanks TajobsIndia

I take all the legal grains in the above reply  and prefer to  ignore personal comments therein.


(Guest)

> Good conversation. The author "TajobsIndia"  has provided clear and convincing legal stand to take.

> Prakash bro - Lot of good ammo for you to build your case and strategy for you. I propose you hire Taj/Arup. It will be worth it.  

sandy velan (social coordinator)     24 May 2011

hi. i read ur letter. pl keep me posted as i also face the same problem

Prakash (IT Specialist)     24 May 2011

Hi Sandy,


I didn't got to the court till now as the judge got transfered. Waiting for a new judge to come. I will keep you posted once i attend the court.

 

Prakash

sandy velan (social coordinator)     24 May 2011

hi, if u say u are seprated from ur wife for past 2 years then why u are not claiming desertion as a legal factor and go ahead with legal action. then u can claim custody of the kid. similarliy ur wife not showing kid to u amounts to mental crulelty and this can go against her. this just my doubt kindly clarify it beacuse we both are saiing in the same boat.sandy


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