Child custody rights of undivorced parents

The scenario is: with child wife left matrimonial house without consent of the husband and in his absence.  Wife filed proceeding under DV act with false allegations including child gender bias and sought remedy of maintenance and restricting husband from communicating. No order of restriction is made, interim maintenance and child visitation is allowed by the court but wife avoiding visitation order by giving false reasons. Therefore petition under Wards Act filed in Family court for child custody, there also wife avoiding child visitation order with same false reasons, both the courts are aware of falsity but they do not act even after many application of disobedience.  This has been going on for four years and the child is being abused by wife and her relatives but husband is not able to protect the child. Wife married unwillingly and wants to go out of relation by blaming husband and torturing him to file divorce petition so that monetary benefits can be extracted therefore not ready to join matrimonial house or for mutual consent divorce. Now, evidence has come before the court that the allegations are false but matter is being prolonged without any fault on husband side and even after application for expedition. The matter may continue for years more.

Now question is how to protect child from the abuse being done by wife and her relatives.  Can husand  take child (6 yrs. girl) without court permission because there is no restriction order?  What is the risk?  Can court under DV Act investigate child abuse on application of respondent? Can court allow custody of  Hindu child (6 yrs) with mother who is not willing to stay with husband without any reasonable cause?

Thanks in anticipation,

Bhanudasssssssssssssssssssss

when a court order is not being followed by your wife it is contempt of court . Your advocate has to file contempt of court in this scenerio . Your Advocate should know about this else if he isnt doing anything about it its time to change your advocate .

• Involve the police, especially if the child cannot be contacted or if their safety is in danger
• Request your lawyer  to send a letter to your former spouse informing them that you are aware of the violation and are prepared to take legal action if the violations continue
• File for contempt of court- this may be necessary in the case of ongoing or serious violations of the visitation agreement. 

• Pay a fine and/or
• Possibly face jail time

Mum cant prevent dad from meeting their child 

Hearing divorce case,chief justice Khehar rules in favour of husband who was denied visitation rights.But the real drama took place outside the court when the lawyers former wife turned up 

Shyam Prasad shyam.prasad1@timesgroup.com 


In what is being seen as a landmark judgment in cases related to divorce and visitation rights of parents on their children,the high court of Karnataka on Tuesday ruled in favour of a husband who was prevented from seeing his son for over 10 months.
The ruling came on the divorce proceedings of Shivkumar Challa and Madhuri who were married in 1996.Their son Rahul was born in 2000.Madhuri is being represented by James Arun Kumar.

THREAT OF JAIL 

The court berated Madhuri for not following its order to allow her husband to meet Rahul every Sunday.
We will send you to jail.Do you understand what jail is You will be sent there right from here.Then your counsel can go to the Supreme Court, chief justice J S Khehar told a stunned Madhuri in open court.
Since January,how many Sundays have the father and son met Not a single Sunday should be missed.Follow the order.If you fail,the following day you should be present in court at 10.30 am to tender an explanation for the same.Jail is a very bad thing.We look upon you as children.But even children should be reprimanded. 
At this point,Madhuri started crying profusely.Seeing this,the chief justice told her,This is not going to affect us. 
Challa then told the court,My childs life is in danger. But the court told him to stick to the present case,that of child visitation rights.

LAWYER GETS IT TOO 

After the division bench of the chief justice and justice A S Bopanna had read its order,James Arun Kumar began to plead Madhuris case again.
But the chief justice said,Do not play tricks.Do not play with words.We will be only too happy to take action.You are giving one explanation after the other.We will not allow this to happen.On Monday,you wasted 30 minutes of the courts time.It will not be allowed to happen again.If there is the slightest deviation from the order,severe action will be taken.We are fed up with this case. 

LAWYERS EX CLASHES WITH CLIENT 

But the real drama happened outside the court as James Arun Kumars former wife Geetha and son Jason showed up.Challa had told Bangalore Mirror that Madhuri and his son were staying with James Arun Kumar who had divorced Geetha seven years ago.
As Challa came out of the court with his mother-in-law (Madhuris mother),Geetha told her,You have not brought up your daughter properly.She stole my husband. 
Madhuris mother retorted,Your husband stole my daughter. 

SONS PLEA 

Geetha and her son then turned to Madhuri.Geetha berated Madhuri for taking away my husband,which led to a heated argument.
While Challa is fighting for visitation rights on his son,Geethas son wants his father back.Jason said,My father drops Madhuris son Rahul to the same school where I am enrolled while I go by bus.I want my father back. 

LANDMARK JUDGMENT 

Kumar V Jahgirdar of the NGO Childrens Rights Initiative for Shared Parenting (CRISP) said,This is a landmark judgment,which sets a precedent in such cases.The court has made it clear that it is the duty of a custodial parent to send the child to the non-custodial parent.By saying that the child should adjust with both natural parents and that the custodial parent should convince the child,the court has given relief to thousands of non-custodial parents.Another important significance of this order is that non-compliance of visitation rights has to be explained before the court the very next day.This is a great turnaround in the thinking of the judiciary in family law.

 

DearAll,
 

Please suggest me what to be done in this case. Any good citation would be really helpful?

I am physically challanged with 100% of disability. My both legs were afftected by polio at my chilhood. I Cannot walk. Working as Teacher (Govt. employee).  I married one lady in 1998. A boy was born in 1999 Divorced in 2004.  The boy's custody forever with mother. But she expired  in 2005.  The boy is living with mother's parental family, with the brother of his mother.  That my son was adopted by him.

I married another lady in 2005 according to Hindu customs and rites. Got a male child on 13-09-2005.  And a female child on 27-08-2007. She converted into Christian religion in 2002 (Took Baptism - I have got her baptism certificate ).  She committed for criminal activities towards me and my father. She punished by the court u/s 323 and 506 of I.P.C. She also beat young aged children where medical treatment was given (prescripttions available).  My wife discontinued 10^th class. I encouraged her to continued studies, joined in B.A. open university. But she failed to continue it.  She developed extra marital relationship with one guy at where we lived.   And she left my society on 14.04.2013 along with female child where a missing complaint was filed. Our male child was staying with me.  After 3 months she came to me along with the female child and stayed for 20 days and went away along with the two children on dt. 25-07-2013. At the time they were studying in private school under my custody.  I called her to come back. But she did not heed. I used to send articles, dress to children. My wife filed maintenance case u/s 125 Cr.P.C. where she is residing. I filed O.P. seeking Restitution of conjugal Rights But she remained absent after counseling made. Ex-parte decree passed in favor me. And the M.C. case was transferred to my place on the ground of my disability. I am paying the children school fee upon the request of the school management (Through phone call) as the mother not paying. The male child is in 10th year studying 4th class. The female child is in 8th year studying 2nd class. The children may like to continue with their mother as they are residing with her now.  The female child told me over the phone that she is afraid of her mother. My wife also wrote me a letter stating that she is working as tailor at her place She joined children in a corporate school. She is residing in her parental house though I called her to come back. She is getting trouble to pay children school fee which are heavy.  Requested me to send school fee. And she also wrote me if I pay school fee she can withdraw the M.C..  I already sent the school fee and continuing.  I wrote two letters with calling her to my conjugal society otherwise send the children to me in view of welfare and future of children.  Which were not replied till now.  Last letter to her by me on dt. 16^th Novemer, 2014.

Me and my father are very much interested towards the children. As they are very attached us.

The male child born in the place where they are residing now.  And the female born at my place. They stayed with me upto July, 2013. 

Now my questions are:-

1.                   I would like to file custody petition.  Where should I file?  Either in my living pass – RCR decreed, The children grew here

2.                   or the place of residence of children right now. – The male child born there and they are residing there from July, 2013 continuously – Studying there.

3.                   What is jurisdiction point to file child custody petition?

4.                   Is there any possibility to execution RCR decree.   And what is the procedure?

5.                   Am I eligible to get child custody?

6.                   Is she eligible to get maintenance after RCR decree passed in favour of me. (Ex-parted)

7.                   What is the time limit to re-open the RCR set a side by her?

8.                   She ready to give divorce.  I am not interested to leave the children with her.  And I think she may change. 

Seeking your valuable opinion on these points.  Kindly reply as soon as possible.

With warm regards,

BABU

+91-9550584717

<babuanapa@gmail.com>