My wife deserted me and son and filed s.9 hma, crpc 125 and gwa
MRRpersonality
(Querist) 03 July 2012
This query is : Resolved
Hello experts,
My wife was taken by her father who promised to bring her back in a week's time. After reaching her native place, she filed RCR (section 9), crpc 125 (Maintenance) and the child (9 year old) under GWA with false claims. She was claiming that the child is living with her, though the child is actually living with me and is going to a school here at my place.
I filed RCR at my place because she was unwilling to join her marital home even though she was to return in one week's time. We have witnesses who know that her father promised to bring her back in a week's time. I was not aware at that time that she filed RCR, 125 and GWA for the child.
After receiving summons, I also filed GWA here because the child resides here in this jurisdiction.
She is not attending the court here. When it reached ex-parte stage (after paper publication), she sent her lawyer saying she is bed ridden and can not come to the court. Her vakalat was refused by the judge, but given another date with a personal appearance memo. It looks like she might send a medical certificate this time (false/fake) and not attend the court again.
I was able to get exemption from appearance, and vakalat at her court and I have an advocate appearing at their court. I wont be able to travel a long distance (1500km each way) along with the child for the court hearings at her place. The child has to go to school and I am working in a private company I joined recently. I do not have much leave (1.25 days per month only). I have to use this leave, when my child stays home sick or for other reasons.
I am asking the experts, if there is any chance that the 3 petitions from another state can be transferred to my state at my court on the grounds that there is a young child involved and that I work in a private company. My wife does not work, and I am willing to pay for her travel, and other expenses for attending the court here.
I was hearing that only Supreme Court can transfer the cases between the states, as a n SLP. I want to try it, if there is a good chance of success. Kindly advise.
ajay sethi
(Expert) 03 July 2012
the chances of cases being transferred to your iwfe place are better if she makes a transfer application the courts are more sympathetic towards the wife as it would entail long distance travel . , threat to her life etc .
you can try your luck on the grounds mentioned by you
MRRpersonality
(Querist) 03 July 2012
How can they transfer my GWA petition to her place ? Can the court at her place decide guardianship of the child, who does not reside in it's jurisdiction ?
Devajyoti Barman
(Expert) 04 July 2012
First of all I failed to understand the very utility of the custody case when the child is very much with you.
Now given the circumstance of your wife the supreme court is unlikely to transfer the case in your place though the vice versa may happen.
MRRpersonality
(Querist) 04 July 2012
@Devajyoti sir: Thanks for your responses. My wife has claimed custody of the child at her place, claiming that the child is living with her and that I have been threatening to take him away. After filing the petition, she sent her relatives to take my son away to her place and she telephoned that she would take him away from me at any cost. The child was not willing to go with her relatives or to her place. We had to involve police to stop her relatives take my son with them. The cause of action was the threat that the child will be taken away by force to their place and hence the sole custody petition in my place, and that the child is living in the jurisdiction of my place. How can they transfer the case to a court which has no jurisdiction ? Is it fair for the young child to travel such long distances disturbing his schooling - it takes 4 days for the travel to and fro, for each court hearing.
She filed custody of the child claiming the child is living with her. What is the utility and purpose of the case when the child is claimed to be living with her ?
Tajobsindia
(Expert) 04 July 2012
1. It is a cross case that has been filed for Child Custody. You have better grounds to get declaration from court as "child guardian" of child than her. Visitation can be looked into. She filed at her jurisdiction bze she also wants to lay claim to be declared "natural guardian" from a Court. remember a parent cannot claim thyself "guardian" of a child. It is a Court which declares so !. In family war of roses who cares for 'utility' spouse work in tandom on some abstracts setellement of egos that's all. However, there are catenas of Judgments on "child jurisdiction" based on which during 'prelimenary objection" stage itself her Custody application could have been dismissed. You say before us you are being represented there by a pleader. Change (fire) him if he has not done the work to dismiss her Child Custody suit by now. Only one Jurisdiction a child custody case can run not multiple. File perjury there with time/date/stamp photo of your child attending school at your place + living with you at your home and let law on perjury take its own toll.
2. S. 9 HMA case can be kept in abeyance till you make up your mind to travel to Delhi to file TP (C) to get it transferred to your place. Strategy to get it transferred could be detailed out later. Even if she gets it ex-partied you have nothing much to loose if you don’t wish to resume cohabiting with her.
3. S. 125 CrPC is a tricky case where she has to prove "neglect" and "ability". You can have your say via pleader and only at evidence stage your presence is required and before that you can always take leave of the Court. If it is filed before Family Court then attend the first re-conciliation meeting with set conditions. Counselor will raise hand and case goes back to court for normal disposal – what is the big deal here! Again this case could have been transferred to your jurisdiction and strategy to get it transferred could be detailed out later.
4. Make up mind if you want the case transferred to your jurisdiction and or let they run at her place as it is!
Strategy and facts to remember to fight Transfer Petition could be detailed at later stage.
Normally, Husband or wife can put transfer petition to transfer the petition from the place where it is initiated to the place of convenience.
If the source place and the destination place are in the same state then transfer petition has to be put in the high court of the same state.
If the source place and the destination place are in the different state then transfer petition has to be put in the Supreme Court.
MRRpersonality
(Querist) 04 July 2012
Thanks much Tajobsindia (aka Rajeev Rakheja!) and really appreciate valuable response.
1. School records with attendance certificate signed by the Principal is available with me. She claimed the child went to her on a date dd-mm-yyyy, however the child was taken to the doctor on the next day by me for his skin infection treatment. We will be filing counter next week, and the above facts along with the document evidences will be filed. My advocate will plead for dismissal of the case on that day - and if we are not successful then we will approach HC to quash the petition.
Important fact from her court side. They sent summons to a wrong address and I have not received them and all 3 of them went ex-parte. On the day ex-parte was ordered, one advocate working in the same court who happened to be a friend of a friend of my father called my father and let us know about this. We got xerox copies of the petitions, and had to rush through filing set-aside petition, exemption from appearance and vakalat. My wife had strongly objected to the set-aside petition, but the judge allowed set-aside and cancelled the ex-parte order based on the fact that they used wrong address to serve summons. Aggrieved, they are approaching HC to stay the set-aside order.
We filed caveat petition in the HC and will know in due course. We will be filing counter on the next date.
As the time is very short for me, and since I have lot more burden on me to take care of my beloved child, I do want to get these petitions transferred to my place. I am willing to bet on the possibility or a strategy to transfer the petition. BTW, this is inter-state, so it's going to be the Supreme Court.
2.) and 3.): I am not really worried as much as the custody of the child, but I want to fight them on merits which I can do well only if it is transferred to the court of my jurisdiction.
4.) I made up my mind to strongly fight for the transfer of the petitions. Kindly share the strategy with me. I am willing to work on it.
Shonee Kapoor
(Expert) 04 July 2012
I agree with Tajobs on all aspects except that the ex-parte decree of Sec 9.
That might turn out to be suicidal, if you have been properly summoned and you let it proceed ex-parte.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
MRRpersonality
(Querist) 04 July 2012
Shonee sir, thank you for your comments. All 3 went ex-parte, but were successful in cancelling the ex-parte order. The summons were not properly serviced, as they managed to send to wrong address intentionally.
Dr J C Vashista
(Expert) 04 July 2012
I agree with Mr. Rajeev, however,you can be represented by your counsel in the case filed by your wife.
No point in filing GWA since the child is in your custody.
Supreme Court u/s 25 CPC may transfer and/or club up the cases in either of the court, which is generally in favour of lady.
