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Justin Raj (Proprietor)     03 November 2011

Visitation rights to my child

Dear friends,

I was divorced in 2006.  Since 2002 I was living seperately from my exwife and child who is a girl who is 14yrs of age as of now. As I was against a legal seperation fearing that I may loose contact with my child I did not agree for a divorce.  In 2004,my exwife and her family filed a criminal case implicating me in physical harassment and extramarital relationships. I had to fight the case for nearly 18 months. My legal counsel was a family friend also. He spoke to both parties to avoid the criminal case and come to an amicable seperation. Both parties agreed and my exwife was advised to approach the family court in Trivandrum for divorce. It was done in 2006 and amicably the divorce was agreed and allowed. It was mentioned in the order that, both the parties can decide about the custody and my  visitation to the child outside the court. I trusted them. 

After the divorce, I was not allowed to visit my child. As I was totally out of connection with my child since 2002, I had no other way but to approach the court with my request for visitation. I was employed in Goa hence it was very difficult to be present in court for all the sessions. A trip to trivandrrum  and back on train will eat up 5 days from my work. As I was working as a general manager for a hotel in Goa, taking 5 days off in every month was  impossible. My exwife's advocate will call up before each posting and ask if I will be present in the court, if I am present, they will not bring the child stating before the court that either she is ill or attending examination or some competition in school etc. The days on which I am not present , they will produce the child and say I am harassing the child by making her come to the court and I don't turn up. This went on for over 2 yrs. I got frustrated and hurt. My only chance to see my child was in the court but by playing such dirty games, they never allowed me even that chance. Finally I had to withdraw my case failing to attend the case regularly.

Now, my dad is over 74 yrs old. he was very attached to my child as she grew up in our house for the first 5 yrs. My dad is going through emotional breakdown as he can't get access to the child. I am working away from home town. I am not sure how to go about getting access to my child. Is there a provision for at least my dad for a rightful visit to my child? my exwife works in the same school where the child is studying. I was never informed when there is a change in school, change of residence etc. I am really worried that I may never get any information about my child.. is there a way that I can get my right to know where my child is, who she is staying with etc.

Pls do advice..

thnx in advance.

pls



Learning

 12 Replies


(Guest)

Women have a habit of hiding their kids. Better not lose the society of the child.

Tajobsindia (Senior Partner )     03 November 2011

@ Author


To begin with there is a confusion in your opening para. One side you mentions and I quote you "the order that, both the parties can decide about the custody and my  visitation to the child outside the court." then why child was produced in Court which you mention in subsequent paras? Clarify this i.e. visitation order if any then solution may be given to your query.

 

Justin Raj (Proprietor)     03 November 2011

@Tajobsindia: At the time of the divorce, my exwife and her parents were so nice and accommodative about the issue with my daughter. They suggested that, let's not drag the kid into the court and legal battle. Her father can visit her anytime so can her grand father and his sisters and kids too. We thought they really mean it. They used it as a bait to get the divorce issue settled asap without me pressing for the visitation rights. If we have not agreed to it, the divorce matter would have prolonged in the court. We didn't expect them to play dirty tricks with the child.  Later my visitation was denied bluntly after they obtained the divorce decree, I had no other option but to approach the family court for visitation rights under guardian and ward act.... then the rest happened..

Tajobsindia (Senior Partner )     03 November 2011

@ Author



Ok we understand the situations fathers are tricked into world over.

 


Allow me to start with few inherent problems (weakness) in your case:-

 

1. In earlier Case (Divorce) it was duty of your then Adv. to get visitation T & C in B & W via Court Order as his legal guidance instead of giving in to your then 'sentiments and emotions'. However bygone is bygone on this comment point.

 

 

2. Post divorce under out of court visitation oral assurance your distant job came into way to meet your own flesh and blood resulting into dismissal of petition under GWA due to non - appearance. However bygone is bygone again on this comment point too.

 

 

3. Presently after seeing not much headway social thinking moves to oldies in family which is natural. here 74 yrs. old g'pa wishes to see child after seeing all sorts of failures by son to bring in desired results on such visitations which is again natural happening and no one could stop such cross - distance problems coming in way of visitation. However bygone is bygone on this comment point too.

 

 

Now we understand your child is now post puberty stage and in her teens means well reasoning age. The thing that Court will see now is "interaction and willingness of 14 yrs. old female child to meet her father or his side of family” during Chamber and or open Court interviews.

 

 

BTW this option will be allowed / prayer granted in your favor post child interview only if child can recollect her interaction with you all these years and / or your side of family and subsequent brain washing (whatever let us not get into negativity at this early stage) are sole limited outcome but visitation (whatever it may be) via Court order this time is guaranteed whatever the child says during interview.

 


Now here are limited remedies possible if aggressively followed this time around:-

 

 

Now let us test all above comments provided you and your senior citizen father can this time 'regularly attend" Court. Think about 1 - 2 years regular attendance this time and decide it before putting in Application on behalf of grandparent for access / visitation of grand daughter under title of PETITION UNDER S. 17, 12 OF THE GUARDIANS AND WARDS ACT, 1980 READ WITH S. 8 (a) (c) (ii) AND ALSO READ WITH S. 7 (1) (a) (g) OF FAMILY COURTS ACT, 1984, AS AMENDED AND UPTODATED FOR GRANTING VISITATION RIGHTS / ACCESS. in a family Court of TRV under whose Jurisdiction such GWA application filed.

 

 

To strengthen above reasoning / suggestion there is a well reasoned Judgment of Hon'ble SC in your scenarios and allow me to quote it for your morale boosting;

 


Re. I.S. Sirohi Vs. Commissioner of Police, Criminal Appeal No. 1361 of 2008 dated 27 – 08 - 2008,
the Hon’ble Supreme Court of India held that;

 

"we are of the view that the children should also not be alienated from the company and affection of their father or paternal grand-parents. In our view, the children require the care, love and affection, both of the father's side of the family, as well as that of the mother, and that none of them should be denied access to the children.”

 


There is another citation on similar briefs facts based (alienation of child all these years as you say) and allow me to quote it here Re. Selvan Vs. N. Punidha 2007 (4) CTC 566 Chennai High Court held that

 

 

"Hon’ble Court would be concerned with right of children to

have healthy environment and physical, emotional and financial

support for development of their integrated personality and would decide custody on above touch stone and would not decide on right of parents. Mother refused to accept financial support given by father – Mother refused to give access to father to minor children while father agreed to give unlimited and unrestricted access to children to mother if children were to be in his custody – Such offer of father would remedy “PARENTAL ALIENATION SYNDROME” that minor children suffer from when one of the parents is not permitted access to children”.

 


Hence in above suggested titled application after basic facts mentioning throw in societal issues theme of child visitation / access social thinking such as may be following paras to justify why you and your father is approaching NOW to have visitation / access when all these years either / both failed (for whatever reasons let us not get into that again as I already mentioned few as comments in abv. para 1 - 3)

 


The social justification paras based on ‘child welfare’ which can go into the application or plead by your side at Bar could be:-

 


“The fact is, a parent does not have the right to take away the child's right to see and meet the other parent / grand parents and social circle of other side. Not just parents, but nobody has to right to take away a child's right to know both their parents and not just the parents but also their extended families and relatives and grandparents on both sides.

 

 

A person being bad does not mean he is a bad parent also. Just like someone with a bad habit like smoking or drinking does not necessarily make that person a bad person. If all bad people were also bad parents then the law would have already banned all criminals from seeing their children. However that is not so!.

 

 

Hence none can take a child's right of seeing and knowing the parents and the extended families / friends and social circle on both sides. If a child is not allowed visitations rights, it would only promote a fatherless society in the future, especially with the rate of divorce increasing. It is the duty of the Hon'ble Court to ensure that even if it is not able to retain the relationship between the father and the mother of the child, it should do everything in its power to help maintain, continue and strengthen the relationship of the child with both the parents and extended families / social circle on both sides and try to reduce the adverse impact on the future of the child.”

 

 

Discuss this rather long reply with your THEN ld. Adv. as he already has grip of the earlier case facts and situations and may be he will extend once again solid facts based help and you and a grandpa are able to have access to a lovely child.

 

 

All the best and don’t loose hope but also don’t become lazy with job commitments and all that stuff when child visitation / custody issues involved, after all we are earning for whom !!!!

Justin Raj (Proprietor)     03 November 2011

Tajobsindia

"2. Post divorce under out of court visitation oral assurance your distant job came into way to meet your own flesh and blood resulting into dismissal of petition under GWA due to non - appearance. However bygone is bygone again on this comment point too."

sir, actually I was the one who had withdrawn my case as I could not persue it with my job and distance. It was not dismissed by the court. I didn't give court an opportunity to do that. I knew it will affect me adversely. 

"BTW this option will be allowed / prayer granted in your favor post child interview only if child can recollect her interaction with you all these years and / or your side of family and subsequent brain washing (whatever let us not get into negativity at this early stage) are sole limited outcome but visitation (whatever it may be) via Court order this time is guaranteed whatever the child says during interview."

Its very unlikely that the child will show any kind of affection or even recognition towards me after all these years of alieneation. It happened in the family court sessions I already had. She was even scared to look at me or show any kind of even recognition. It was the most painful moments in life as my own blood, child who was the best friend and playmate for 5 yrs since birth looking through me as if I don't exist there... this was one another reason for me to recall my application. I didn't want to go through it. it was the effect of the people she is growing up with. Any way, I am taking my chance...I know this is not the forum to express my emotions, but there are fathers like me who are going through the same situation. If anything helps them, it would be  nice.

Thank you so much for your your inputs and professional advice. I am going to consult my lawyer in Trivandrum with your detailed reply to my question. I shall keep you posted about the developments. Now, its not very difficult for me to persue my case as I am just an overnight journey from Trivandrum and I am running my ownn business.  I think its time to fight for my cause.. at least the child will surely understand that her dad tried!!

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     03 November 2011

Justin Raj,

 

Though nothing more needs to be added after a detailed reply by Tajobs, I would like to speak one thing only.

 

YOU CAN NOT HAVE YOUR CAKE AND EAT IT TOO.

 

After 9 years the child would be brain-washed and any forced visitation would traumatize the child.

 

 

Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

(Guest)

Get the child forcibly and use Home Minister for kidnapping. Further Rebrainwash the child after removing previous brainwash. In Indian Tradition law is not used but only force serves the purpose.


(Guest)

There a serious error in the long post "ORAL ASSURANCE". Only contraceptive pills are used orally but in all other matters GUNS are the only answer.

1 Like

Harshal (PP)     05 November 2011

IMPORTANT INFORMATION YOU CAN USE FOR ALL THE CASES

DEAR ALL,

AS I CAME TO KNOW ABOUT THE LAWS IN INDIA I FOUND TO EXPLAIN ALL THE CASES IN VERY SHORT MATTER CAN BE SOLVED BESIDES MAKING IT MAX CASES LONGER THAN USUSAL TIME.....

1) I HEARD - OUR SUPREME COURT ITSELF EXPLAINS THAT OUR GOVERNMENT DOESN'T WANT TO IMPROVE THE JUDICIARY SYSTEM AND BUDGETARY PROVISION IS VERY LESS. WHEN THE SUPREME COURT ITSELF ACCEPTS THE JUDICIARY SYSTEM IS VERY POOR AS WELL AS ACCOUNTABILITY IS ALSO VERY VERY POOR..AND WE SEE THE CRIMINAL GRAPH IS ALWAYS BEEN HIGH WHY THE COURT IS DELIVERING THE JUSTICE FOR IT WHEN THEY HAVE ITSELF THE DROP HOLES...AND NOT WELL WITH THEIR ADMINISTRATIVE AS WELL AS DELIVERING JUSTICE SYSTEM..... IT IS ALSO BEEN SEEN THAT TO FIGHT WITH CORRUPTION IS VERY HIGH..........COURAGE,VERY HARD ... BUT IT IS BECOME VERY EASY FOR ALL TO LIVE IN BETTER WAY IN INDIA TO MATCH FREQUENCY OF PEOPLES LIVES IN INDA TO BECOME A CORRUPT AND MAINTAIN THE SYSTEM WHICH NO REQUIED ANY LAW JUST MAINTAIN THE ECONOMIC RELATIONSHIP WITH ALL THERE IS NO MATTER / VALUE OF PEOPLE LIVES OF COMMON MAN IN INDIA.

IT SHOWS THAT MANY COURT HAS NO THEIR OWN LOOPHOLES ( EX.  AKOLA DISTRICT AND SESSION COURT / NANDED DISTRICT AND SESSION COURT WHICH I HAVE SEEN )THEN HOW IT IS DELIVERYING THE JUSTICE... IT IS COFLICT OF INTEREST ....

2) WE SEE THAT EVEN AZMAL KASAB HAS BEEN EVEN NOT HANGED......THEN WHY OTHER CRIMINALS SHALL BE TOURCHED.........IF THE COURT IS HAVING ACUMEN THAT EVERY HUMAN LIFE IS IMPORTANT OR THE JUSTICE SHALL BE PROPER THEN WHY IT IS NOT TAKEN RIGHT IN TIME? ALL OF US HAVE TO ACCEPT THAT MOST OF THE CASES WHICH TAKE MORE THAN LONGER TIME FACES NOW LOT OF PROBLEMS AND CREATES MORE HAVOCE RATHER THAN SATISFYING ON URGENT / WITHIN TIME JUDGEMENT. WE MUST SEE THE CASE INDIAN AIRLINES HIJACK ALSO THAT THE TERRORIST NOT PUSHISHED AND HIS FRIENDS MAKE OUR GOVERNMENT TO SHAME BY FLEE THEM..SHOULD COURT SHALL BE HELD RESPONBILE IF SOMETHING MISHAPPENS? IF NOT THEN WHY THE CASES ARE SO?????????????

3) WE MUST NOTE THAT NO ANY COMMON PERSON BECOMES INNOCENT VICTIM OR CRIMINAL AND EVERYBODY HAS GOOD LIFE TO ENJOY RATHER THAN BECOMING FOOL UNDER THE LAWS AND WASTING THE TIME...AS COURT IS ALSO OFFER ONLY DATES...AND NO PROPER DECISION WITH RESPECT TO TODAY SCENARIO AND SOCIETY VIEW NOT MAINTAINED. 


(Guest)

HARSHAL: Apparently for the ruling party terrorists are more important for using them for election stunts and polls or diverting people's attention from core issues in India.People don't matter to Manmohan Singh types.E.G Anna Hazare, Bashing sleeping kids. He's fortunate that he's not in USA where he would be in Jail for Child Abuse.[This includes the insensitive Judiciary who entertain public Interest Litigations from Whores and Big time Companies]. What I'm saying is all too obvious.]. Something is going to happen to all of them pretty soon. Wait and watch when the firworks begin. Don't forget, that "THE SHOW'S NOT OVER TILL  THE FAT LADY SINGS"

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     05 November 2011

Phew, Adv NINA is on her own trip.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com


(Guest)

LOL! I'm immune,at worst they can deport me for being a persona non grata.


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