KARAN SINGH (SERVICE) 19 July 2012

Brain storming querry......for experts only

dear experts ;

1.here is a unique problem with regards to the jurisdiction for the custody of child nad experts views are invited for a brain storming session.the case is as under:-

2.A lady deserts her husbands house from delhialong with a daughter of 5 yrs old who was studying in a reputed convent school (after a long marriage discord of almost 7 yrs ).she calles her father to take her away ; .The husband was out of station at the time of desertion

3.when husband returns home he is told by his senior officer that before desrtion wife handed over keys of house to him .husband presumes that wife may return soon but realizes after a number of letters written to her father that wife has picked up a job in her parental town(nainital) .also husband gets shock to know that lady withdraws TC of the daughter from school without his knowledge and information.and daughter has been admitted in a medium grade school at their place in same class

4.Soon after 3 months passing by; husband comes to know that the lady has left her parental town for whatever reason(good salary or embarassement from society) and gone to some unknown place along with daughter still husband is devoid of even speaking /calling meeting the daughter. all attempts by mediators and letters to convince ladys parents fail to know whereabout of wife and daughter.

5. after passing bye of 6 months husband receives a summon under section 13 (1a) from lucknow family court .On further enquiry by husband it was found that lady was actually working at some place in distr unnao and in summon had filed case from distr lucknow showing her residential adress of lucknow .the adress mentioned in summon of lucknow was not seeming genuine

6. now husband wants to file GWA hence

(a) what is the jurisdiction for filing GWA

(b) Husband doesnt want to give divorce so lightly

Reply Follow

4 Replies

Tajobsindia (Senior Partner ) 19 July 2012

1. If child removal from Delhi dates to roughly 180 days then Lucknow Court takes "jurisdiction."
1.1. If child removal is under 180 days then Delhi court attains "jurisdiction."
2. She might have given address of her local advocate. If she is receiving court notices at that address (LKO) then normally Court allows it. BUT, the moment you ask technical questions to Court then matter may get stayed and then you have to prove that the address used is not where child is staying nor at the address she has received any Public Office Notice(s) leave aside child's ordinary residence for that you have to approach after filing W/s to her GWA petition at LKO to District Judge Court by way of preliminary objection on cause of action doubts. See where you want to stand i.e. immediate admission of your w/s in LKO court or getting visitation or lingering case on Jurisdiction of child grounds and the more it lingers the child attains Jurisdiction of that place remember that too :-)
3. There is a very simple test to know if child is in LKO or not which you need to perform but for that balls needs to be of steel will. Decide and I will tell you here itself.

How and why you will come to know once you opt either one of the above cause of action.

Some random thoughts:
A. Many times natural father feel embarassed to approach Police / Court immediately once their child(s) are removed / without their consent taken out of their homes by whomsoever.
My question to those fathers is suppose from regular school going child the child is removed from school at lunch time by a known person without your knowledge / consent and your wife is at that time sitting at home bakign pastry for you - what will be your immediate reaction / Act to such removal!

That is what you were supposed to do then and there instead of getting into technicalities and social fabrics. PERIOD.

Wake up generic fathers here.

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PS.: I donot want to comment on @ Rajiv's reply at this stage unless my para 2 is clarified by author of this post. BTW, it is child's ordinary residence and not mother's which is paramount in GWA proceedings. For HMA [S. 13(1)] my para 2 reply by author is awaited. Both jurisdiction question are on different footings and let us not get confused mixing child and mother's jurisdiction question here.

However if not satisfied then feel free to move your query to whereever you wish you will get better reply sootihing to your cause title.

1 Like

rajiv_lodha (zz) 19 July 2012

Though u have titled ur query as "for experts only" while EXPERT SECTION was very much available to ur disposal for this very demand. So the readers feel free to respond here at public platform:

1) GWA case will be filed "where child normally resides". So wait for a while as things become clear at Lucknow.

2) Lucknow seems not a JURISDICTION PLACE for her to file case U/S 13. It has to be filed

* Where the couple last resided 2gather..........hope u not parted ways at Lucknow

* Where marriage happened ......................Hope u were not married at Lucknow

Way out is: Seek somebody's help at Lucknow court & obtain the petition copy. Next plan can be chalked out on this ground

KARAN SINGH (SERVICE) 19 July 2012

dear experts ;

first rajeev : as said it is a brain storming problem is not as simple as it semms jurisdiction has to be lucknow sinceafter the ammendment in 2003 and the in equality provided to ladies by law (by Act 50 of 2003, sec. 4 (w.e.f. 23-12-2003). given under sec 19 iii a i.e [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, )grants the permission to file case from the place where she resides now question is : is she residing in lucknow or the adress given is of the lawyer and as brought out by TAJOB it is a matter of technicality. secondly can forceful shifting of a child does not come under ordinary /normal residenship

now tajobs india : see the question for you is how to prove ordinary residenship and what is ordinary residence of baby awhen a child is forcefully abducted and kept in a place which father till date doesnt know if she is really there or not and if yes then since when ? hence your solution of less than 6 monts or more than 6 months is unknown to the father and she is anyways not living in lucknow for 180 days as she has been working in distr unnao

so lets do some more brain storming and come to a fool proof plan!!!!!!!!!!!!!!

keep guessing and shooting ideas after all you are professionals

regards

Tajobsindia (Senior Partner ) 19 July 2012

@ Maj. Bisht,

1. I'm not interested in your brain storming anymore.
2. You keep searching and getting confused.
3. It is a GWA Petition whose correct answer I have given and not HMA (Divorce) mind it bze you asked for GWA.
4. When you finaly give up come to me in open forum and I will tell you same for free here in open forum itself but be known by then your child will attain "ordinary residence" at LKO and case will proceed at FC LKO.

T/C