Child custody, maintainance money

1. Can she filed the case of  the child custody in UP or She has to come to Gujarat? Interim and/or Permanat ? How long each process can take?

She would have to contest child custody in Gujrat. The child custody cases lie where child "normally resides." Even if she files a case in UP, it would be transferred to Gujrat by same court otherwise you would need to go to SC to get it transferred.

2. What is the legal updated age of child according to Hindu law for custody? 5 or 7? I understand that child aged 5 can go with mother normally. I have baby girl and I love her more than my life.

  This law has been modified by various judicial dicta, now welfare of the child is sole consideration for child custody.

3. Can she claim maintainance for her self in UP?

  Yes, she can, if she is not working

4. Can I buy any chance ask court to transfer the case in Gujarat as I work here. I have baby live with me. I have retired parents living with me.

Hmmmm, that is a process, we can tackle it when we come to it.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Dear Shonee,

Wow! This is so damn quick reply!!! I have never imagined. You replied just in 7 minutes !!!

Thanks a lot ! 

One more question:

Even If she apply for Interim custody she has to do in Gujarat? Plus, how long court take to take decision on Interim custody? What is the chances and kind of factor courst consider?

One of the lawyer told my uncle that: you have to go to court with your child and court will decide very same day that who will keep child!!! It sounds absurd but than this is India.

thanks a lot

Raj

You say that Sec498A has been filled in Gujrat, Did you move forward to get this quashed. If no are you on bail. Is there any divorce case going on.

To answer your question's:-

Now my questions:

1. Can she filed the case of  the child custody in UP or She has to come to Gujarat? Interim and/or Permanat ? How long each process can take?

This question pertains to the territorial Jurisdiction of the competent court. She definetly can file a case in UP and the court will have Jurisidiction. if she has forced fully taken you child. You can move a application under Article 221 in H corpses in the Hon'ble High court of Gujrat. The court will direct her to produce the child before the court, If you are saying that the child was staying in Gujrat and she was admitted to certain school, Enclose the documents for the same.

Apart from this you can also claim the custody of the child. You need to prove that the child is safer in your hands and you can take care of the child along with your parents. There are a number of cases in which father has won the battle of child custody. But you need to be patient as the system does not moves as fast as the corporate world moves.

2. What is the legal updated age of child according to Hindu law for custody? 5 or 7? I understand that child aged 5 can go with mother normally. I have baby girl and I love her more than my life.

As I said earlier you can also file for child custody. But under normal conditions the custody of the female child goes with the mother unless and untill the mother is insane. 

3. Can she claim maintainance for her self in UP?

 Yes she can claim u/s 125 of crpc. To defend that you need to prove that she is working and has sufficinet means to support her. Even if she is capable of maintaining her, you are still liable to pay for the child education and other expenses.

4. Can I buy any chance ask court to transfer the case in Gujarat as I work here. I have baby live with me. I have retired parents living with me.

 Yes you can, approach the Supreme court for transfer cases, but the posibility of the judgement comming in your favour is very low.

It is better to engage a good lawyer who can defend your case. if you need any further inputs please ask.

Even If she apply for Interim custody she has to do in Gujarat? Plus, how long court take to take decision on Interim custody? What is the chances and kind of factor courst consider?

The interim custody is decided as soon as you file the Written Statement. Yes, it happens pretty quickly.

One of the lawyer told my uncle that: you have to go to court with your child and court will decide very same day that who will keep child!!! It sounds absurd but than this is India.

It is not absurd, the court everywhere applies mind on prima-facie material for deciding interim custody.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Dear Amicus & Shonee,

Thanks for your reply. As you might know that in this situation we think something new everyday!

A brief details before I ask few more questions:

My baby has been living with us since she came back from UK -when she was 1 year old -with my parents. She has been studying and taking part in other activities. my wife rarely spent time with her. In UK when she born she spend first year with her then my mother brought her back because my wife wanted to take an employment. After that my wife spend 2 months in total. 1 month in 2008 and 1 month in 2010 with her. In 2010 she took my baby and went to see her parents in UP then came back and went to Hong Kong for residing as we decided earlier. If you need more info: please read my first post on the top of the page please..

My questions:

Q.1 My baby is living with me. Can I take any precautions or do counter case to stop my wife taking my baby by Interim Custody?

Q.2. As, Mr. Shonee mentioned, the Interim Custody can be quick, How quick it can be? Can it be One day? Can I get a stay?

Q.3. My parents are scared and want me to do compromise out side of court and give my baby away as they think that she would win the case and I would be harresed too much financially and other way...i.e. Going to UP if she files the case for maintainance. Plus they also worry about my security if I go to UP as you know, how it is. I want my baby to live with me. My parents even won't be able to live without her.

Raj,

Don't worry..........stay cool...........Please find custody judgements from https://www.lawyersclubindia.com/forum/Re-Re-Re-Re-Re-Judgement-helping-innocent-husbands-24586.asp

It has a supreme court judgement that confirms a monor's custody to its grand parents (father side) rejecting a interim custody claim of maternal grand parents and says that - while deciding interim custody one should see if maintaining status quo would be so bad for the child ...... if that can be prooved then only interim custody should be changed otherwise main case should run on merit......

Don't worry dost..........once the child is with you then no one can take him/her till 4-5 years at least as there are courts till SC even to hear interim cases and Child's wish and welfare is the biggest criteria............BEGGERS WHO CAN'T MAINTAIN THEMSELVES CAN'T CLAIM TO PROVIDE BETTER FUTURE AND CARE TO THE CHILD SO AS LONG AS THERE IS A DEMAND (MAINTENANCE) FROM HERSIDE........SHE CAN'T CLAIM CUSTODY.

REPLY TO MY PM AND WOULD BE HAPPY TO SHARE MORE WITH YOU.

Regards,

PC

@raj patel,

I do not know whether my response will be your liking or not, but I want to answer to your question relating to child custody as straight forward as possible.

1.  As the child is living pretty long time and also presently living in Gujarat, the place of filing of suit for child custody lies in Gujarat, as the child is residing there.  It does not preclude your wife to file it in U.P. with the sole purpose of harassing you.  But your can contest the case taking preliminary objection of territorial jurisdiction question and can ask the court to decide this issue before taking up the matter to decide on merits at later stage.  Alternatively, you can approach the Supreme Court to transfer the case from U.P. to Gujarat.

2.  The interim custody application will be filed by the petitioner (means your wife) along with the main petition.  Once you file the reply, the judge give both the parties opportunity to argue on interim custody application. Now, I will tell you very important legal point.  Never ever the prayer in the interim application shall be same as that of main application and the courts are restrained to give the whole relief in the interim application itself keeping the main application pending.  If the courts do so, what is the purpose of deciding the main petition, where as the petitioner already got the entire thing what he wanted in the original suit.  So, courts will not give permanent custody to the mother even on the interim application.

3.  Now, I discuss how the interim application will be decided and the same principles with a little difference will be applicable in deciding the main application.  The welfare of the child is the main consideration.  The law says that the father is the natural guardian of the child, but till the child attains the age of 5 years, the mother can be given custody of the child.  So, generally till the child attains 5 years, the mother will be given the custody normally.  But if you go through several judicial pronouncements, the courts have carved out a principle that in the case of girl child, even after crossing of 5 years, normally the custody with the mother is in the best interest (welfare) of the child.  But, the courts may deviate from the principle on the basis of the facts available in a particular case. In your case, in my opinion, facts are telling very different  story.  She is staying with you since she was one year old.  She is attending the school from Gujarat, where she might have a large number of school friends with whom she well adjusted.  She has been getting sufficient affection from grand parents when father is on duty.  So, it is not logical to separate the child from father at this stage.  But court has to confirm from the child that really she is feeling happy living with father and grand parents.  So, the court may find out the opinion of the child in a chamber and if it gets the above said impression, then the custody will not be given to the mother even in interim application,  But mother is after all mother.  She has got her own affection with the child. She could not take the child along with her as she was staying abroad alone.  Now the opportunity came to her to live with the child.  If the child lives with the mother, it is not against the welfare of the child and in fact, it gives the chance to the child to grow in a healthy and wholesome manner.  But the wife is living in UP and husband is living in Gujarat.  How the child shall be provided the love of father and mother?  Providing the visitation rights to the mother one day in a week or two to three days in a month will not solve the problem.

To resolve this conflict, the court may direct in interim application that in Dusserah, Christmas and summer holidays, the child will live with the mother in a place where she is living.

Such an order or similar order will come out of this type of cases.

Wish you best of luck. 

Dear PC,

thanks for motivation, I need it dost.

Dear Mr.Chandu,

Thanks a lot for taking so much time to reply.

Can you please explain the below with example?

"Never ever the prayer in the interim application shall be same as that of main application and the courts are restrained to give the whole relief in the interim application itself keeping the main application pending."

An other important thing I didn't mention is:

My wife is divorced with 1 baby girl when I met her. She actually gave divorce to her previous husband and gave unconditional custody of her daughter because she wanted to come and live with me in UK. She was at that time in Hong Kong.  I don't have any paper proof her divorced, but I have emails she sent me with her daughter pictures plus I have an album of her daugher and parents. I can't even find her previous husband to help me out!!!

So, if she can leave her daughter to get merry and come to UK, How can I trust her that she is going to take care of my daughter if she keeps it??

Do you think about argument make my case more stronger?

Plus you didn't reply that;

1. Can I take any step so she can't take my baby by interim custody?

2. If she does file for interimk custody, how long will it take to start the case and come out decision??

regards

Raj

.1 My baby is living with me. Can I take any precautions or do counter case to stop my wife taking my baby by Interim Custody?

  Don't file false cases.

Q.2. As, Mr. Shonee mentioned, the Interim Custody can be quick, How quick it can be? Can it be One day? Can I get a stay?

  It can be as quick as one month,.

Q.3. My parents are scared and want me to do compromise out side of court and give my baby away as they think that she would win the case and I would be harresed too much financially and other way...i.e. Going to UP if she files the case for maintainance. Plus they also worry about my security if I go to UP as you know, how it is. I want my baby to live with me. My parents even won't be able to live without her.

:-) That is something which you guys have to decide.

Dear Shonee,

1. I didn't mean to file false case. I mean any other counter case or precaution so I can have interim custody of my baby if she asks for it.

2. Is there any way to bring stay on the decision of Interim Custody?

3. Of course, we have to make decision but what are the chances of keeping my baby with me? I mean, my wife did leave her previous baby because she wanted to merry me and wanted to come to UK! When we were in UK she had 2 abortion because she didn't want baby. I wanted baby but she said no. I am worrying about my baby's future that how much she can take care of her?

She is only 12 th pass. She is good experienced as she worked in Uk and Hong Kong but not mature enough to take right decision for herself too!

One completly new question

What is exclusion and discharge in indian law. i.e. She charged us with 498a, where she also included my sister and brother in law who don't even live in Gujarat!! They rarely spent time with her. we still have to take their bail which we going to do this week when they arrive from Delhi. My lawyer told me that after the bail we can ask for Exclusion and/or Discharge as they are living very far.

1. I didn't mean to file false case. I mean any other counter case or precaution so I can have interim custody of my baby if she asks for it.

Cases can not be filed on advise alone, what are the sufficient grounds you have to file the case. Unless you have valid grounds, the cases are false.

2. Is there any way to bring stay on the decision of Interim Custody?

You can challange the same immediately and move higher court. Ask the court to grant time for challange by way of writ etc.

3. Of course, we have to make decision but what are the chances of keeping my baby with me? I mean, my wife did leave her previous baby because she wanted to merry me and wanted to come to UK! When we were in UK she had 2 abortion because she didn't want baby. I wanted baby but she said no. I am worrying about my baby's future that how much she can take care of her?

Well, that depends on merits of the case only. She herself left the kid would be biggest impediant for her getting the child custody.

She is only 12 th pass. She is good experienced as she worked in Uk and Hong Kong but not mature enough to take right decision for herself too!

This alone is not ground enough, if you are better educated, more stable in life etc then it can be comparative grounds.

One completly new question

What is exclusion and discharge in indian law. i.e. She charged us with 498a, where she also included my sister and brother in law who don't even live in Gujarat!! They rarely spent time with her. we still have to take their bail which we going to do this week when they arrive from Delhi. My lawyer told me that after the bail we can ask for Exclusion and/or Discharge as they are living very far.

Well Discharge and exclusion is again questions abour merits, which has to be deduced from FIR alone.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

Dear all,

Thank you very much for your reply. Mr.Shonee specially you!

Few more things in my mind:

As my wife filed wrong case on my family [ 498a,504,506,114 etc.] My parents and I got bail and my sister and brother in law are coming this week from Delhi to Gujarat for the case and we will get their bail too.

I understand it may take maximum 3 months to police to prepare chargesheet and then case will go to the court.

I am sure that my wife who lives in UP will surely file an other case to harrase me. May be 125 or child custody.

My questions:

1. Can she file anything else other than 125 and child custody?

2. Do you think it is wise to avoid-by not accepting courst summons- for 125 or anything else?[i.e I work out side and only stay home on Sunday so I would be able to receive it. ] few times to get more time on our side and then can make up our next step. I am not saying completing ignore summons but only avoid 2 or 3 times.

if yes, then how and for how long? Any kind of proof should I keep that I was out of town?

Please note that I loved my wife and never harresed her and even after going through very bad time with my family because of her, I don't want to harrase her wrongly. I am man of law but now this is too much..I must find some loopholes to make this process very slow to buy time on our side. In the meantime, when we both get call for 498a, we may have chance to see if she turns up or not?

Anything else comes in your mind please feel free to advice, I will be greatfull to everyone.

God bless you all indeed.

thx

Raj

I understand it may take maximum 3 months to police to prepare chargesheet and then case will go to the court.

Your understanding is wrong, 3 months rule is if accused is under arrest. I don't know about your area, but I have seen chargesheet delayed upto 2-3 years.

I am sure that my wife who lives in UP will surely file an other case to harrase me. May be 125 or child custody.

My questions:

1. Can she file anything else other than 125 and child custody?

There are loads of cases she can file DV, 125, Divorce, HAMA18. Also when it comes to false case, there can be 100 false grounds.

2. Do you think it is wise to avoid-by not accepting courst summons- for 125 or anything else?[i.e I work out side and only stay home on Sunday so I would be able to receive it. ] few times to get more time on our side and then can make up our next step. I am not saying completing ignore summons but only avoid 2 or 3 times.

That is something which you have to decide, I don't know what purpose can be served by avoiding summonings.

if yes, then how and for how long? Any kind of proof should I keep that I was out of town?

Please note that I loved my wife and never harresed her and even after going through very bad time with my family because of her, I don't want to harrase her wrongly. I am man of law but now this is too much..I must find some loopholes to make this process very slow to buy time on our side. In the meantime, when we both get call for 498a, we may have chance to see if she turns up or not?

hmmmmmmmmm

Anything else comes in your mind please feel free to advice, I will be greatfull to everyone.

My mind is mostly blank ;-)

God bless you all indeed.

God Bless You too