Is trailing ex spouse by detective agency legal ?

meet him and try to resolve the matter amicably. If not possible, here r the answers:-

1) Can a decree more than seven years old be challenged ?

>>> Divorce decree cant be challanged, but yes he can file for custody.

2) If mother has taken overall responsibility for nearly eleven years and has got custody, can father claim back custody (because she remarried ) ? {father too had remarried earlier }

>>> He can claim back, but i dont think he will get the custody.....He may get the visitation rights if nothing was mentioned in MCD and MoU.

3) Can the ex employ the services of detective agency and openly trail the ex wife ( now somebody else's wife ) for one year and isnt it criminal/illegal to breach privacy of anyone openly?

>>> Yes he can do this, its not illegal as privacy is broken once he tries to enter someone's private place ie home

4) Is it mandatory now to give visitation as per the natural father's demands since he had been absolutely irresponsible  and trying to disturb the child's  school life by making her answerable for her mother's divorce/remarriage in school ( he secretly went to childs school after eleven years and kid was shocked and started crying as reported by principal later)

>> Mother may complain to police, but this step will breach her peace.....Better to sort this amicably, otherwise fight in court and try to get his application dismissed.

5) Are there any deterrent for deadbeat parents in India ?

>>> No 

Also note there is even a precedent from Hon’ble SC where even after SC Lok Adalat agreed MCD husband (a Dr.) challenged after few years the very Lok Adalat agreed decision (which is very very rare to challenge by ordinary litigants but he did it) and got child visitations so what we are talking here !

Thanks to both experts for their advice.

1) My query to experts is that then what is the use of coming to a mutual decision when one of the parties denies their part of the bargain and act against the base understanding of the mutually settled divorce.

2) Hiring of private detectives to trail my sister is different from going for an adhaar card as far as I know adaar card is a government identity document  made with informing the card holder and private detectives are unknown men/women tracking people without their knowledge . Please dont carry a biased view of the matter. If an unknown person follows someone for a longer duration to track his/her activities ,isnt it also called stalking . So why cant the person being tracked demand breach of privacy as his/her constitutional right was my query . But as advised by 498aweddingift ,its not a criminal act under indian law resolves my query.

3) The child has not met her father since 2003  ,so was shocked to see the father that too in school without information and at least , dont accuse the mother of not making it happen as my sister wanted a peaceful settlement. The father himself did not want any interference of child or my sister as he had plans for remarriage even before divorce. Its only after my sister remarried that her ex husband started contacting her and wanting to know of her newly married life . Every person has a right to privacy and  where even parents dont interfere. Anyways, if there are people who think that irresponsible and unstable parenting is also acceptable in open forums ,  it surely is an eyeopener.thanks for providing a 360 degrees feedback. 

4) Signing an MCD isnt deadbeat . Not taking proper care of the small kid through the years is deadbeat. The father could have demanded custody/visitation of the kid in 2006 too but its difficult to bring up a small child singlehandedly and spend time ,money and energy on food , education, allround development of the child. Its difficult to find partners for remarriage if u have a small kid totally dependant on him and hence ,resettling was easier for the father if he left the care for ten years totally on the wife. Yes Tajobsindia  ur right as now our family too thinks we should have pressed for alimony and maintenence of my sister rather than listening to her and peacefully concentrating on bringing up the girl child with love and full fledged attention. 

5) If all the parties settling for MCD start raking up their cases again after certain years of settlement , the court will not have time to take up new cases I feel.

Lastly , lawyers too are sometimes not able to help and made me confused with their different opinions. So I requested your advice here and gave my clarifications as well. Thanks for your views .

1.    My reply was straightforward so that family gets prepared to face second jolt after their brief slumber.

2.    Mind it ‘child custody – visitation’ Order(s) are never permanent be it under any nature of settlement happened in past between natural parents. That is beauty of 'child rights first over parents rights next' principles well taken by our Amicus - Jurists accordingly though we are still not signatory to Hague Convention and such rights are still evolving in Indian judicial wisdoms.

3.    Aadhar card biometric data is in open domain and foreign contractors are handling some of our citizens biometric datas in various parts of India under temp. contract which is huge security risk akin to loosing once personal privacy and no other country in the world except in India such invasion of privacy has been openly going on is my counter rejoinder to using it as exact illustration to your short cry on invasion of privacy. Coming back to your same query para in legal spirit the earlier replier has given wrong reply stating it is not criminal act. I say it is criminal act under CrPC Amendment 2010 and rightly said comes under ‘stalking’. But like we defend a client no matter he may have admitted in my Chamber that he is a rapist so my defence here for sake of argument is as follows; when child is minor the rights of minor child is perceived as ‘continuous’ and major adults (here in these two ex spouses - child's natural parents) cannot be found at fault in respective dereliction of respective duties no matter in their adult lives changes have happened.

4.    Party do rake up old wounds that is side effect of ‘adversial Common laws’ followed countries litigation sofarso that India even after seeking independence some 66 years ago from British rule still follows common laws more or less. Illustration is that we hear quite often that ‘a case is sub-judice’ whereas in pure Laws followed countries there is no such concept as ‘sub-judice’.  

5.    Go beyond sentiments and emotions when facing second brush with family laws this time. Ideally such re-brush challenges should be settled amicably outside Court by both warring spouses of same stock as for a teen it may now lead to trauma but then all these could gets settled if a seasoned (common) advocate takes charge and guides properly both sides of same coin (ex spouses means) across a mahogany table.

I am glad you took my straightforward reply without much social media out cry - outwardly disturbance and feel you will take these [last reply] accordingly too.

(1) Can a decree more than seven years old be challenged ?

If he files the custody suit, you need not worry.  He will not get custody for the simple reason that the court goes along with the wish of the child and as per your narration, she will not prefer her father and so permanent custody will be with the mother.  If the child in clear cut terms say in the court that she does not want even the visit of her father, he does not get visitation rights.  But you must leave these options truly to the child about custody and visitation rights without tutoring her.

  2) If mother has taken overall responsibility for nearly eleven years and has got custody, can father claim back custody (because she remarried ) ? {father too had remarried earlier }

The court will ask the child about her preference and the court goes according to her wish.

3) Can the ex employ the services of detective agency and openly trail the ex wife ( now somebody else's wife ) for one year and isnt it criminal/illegal to breach privacy of anyone openly?

No.  Absolutely illegal and it is now more illegal because criminal law amendment Act, 2013 made "stalking" as punishable offence and either a detective (who is not a public servant and who is not discharing public function in good faith) stalks a woman, she can give a complaint about the stalker or the person who engaged that stalker.  Let your sister give a complaint against her ex-husband and the stalking agency in the area police station and see how melodiously they both sing in police station.

4) Is it mandatory now to give visitation as per the natural father's demands since he had been absolutely irresponsible and trying to disturb the child's school life by making her answerable for her mother's divorce/remarriage in school ( he secretly went to childs school after eleven years and kid was shocked and started crying as reported by principal later)

Give a written application to the principle that not to allow him to visit the child in school without permission from the court and if he does not decist then the only option left is to file a complaint against him for attempting to kidnapping the child.  No need to give visitation rights to him.  Let him pursue in the court for visitation rights and if the child does not like his visits, he will not be allowed by the court for such visitations.

after seven years if father can claim means he is natural father mere divorce then he can claim 

yeah stalking can be charged under CrPC, but that will again be a battle. If you want to go ahead, create some evidences and file it.......but if the father is following his child, i dont think u will be able 2 convince the jusge....

Rest Tajobs has given advice perfectly ....

Originally posted by : Tajobsindia
	Originally posted by : Moonlight_8 . Also a 11 – 12 years child does not cry seeing her father it is over-reaction of a principal who could not handle the situation and thus mis-reported the meeting.

Tears of joy must have flowed out from the child seeing her father after so many years . Principals should keep away from family matters and should not interfere in family disputes but stick to their job of supervising the activities of the school .

Hello Experts , thanks a lot for your advice and suggestions.

• Tajjobsindia I really appreciate your detailed views and there are a few points which could be very relevant to the case. Go beyond sentiments and emotions when facing second brush with family laws this time. An Important advice to (esp for my sister ) to keep in mind while facing the court and other party.
• Chandrasekhar Sir ,your advice is really helpful esp. on the detective agency issue as my sister finds it to be too much interference from her ex husband. She has remarried just two years back and has been under surveillance by the agency since last year as per agency reports.This is an intrusion into her newly wedded life by her ex husband(who himself remarried earlier) and can be termed as harrasment .He knows details of which places she went with her husband etc. which is totally irrelevant to the case and reflects a very shadowy person behind all this . 
• K mahesh SIr, I cannot get your point. If its a query  then yes , he is the natural father and the custody issue was dealt with in her divorce decree and judgement. Custody is with her and my sister has taken total care of my niece ,of course as is her duty .  
• 498aweddinggift , thanks for your views and we too wish to settle things amicably . The father did not follow the child .He has a wife and a grown up son with whom he is spending a settled and peaceful life ,so he doesnt have much time to be with the natural kid. He is working and therefore employed some spy agency to do his spying .Amicable solutions should be the aim of both the parties , only then a fair settlement can be reached. This is what I feel though my sister is quite distressed to find herself being spied upon after seven years of divorce.

Thank you once again for your opinions and suggestions.

Originally posted by : Tajobsindia
	Originally posted by : Moonlight_8 . Also a 11 – 12 years child does not cry seeing her father it is over-reaction of a principal who could not handle the situation and thus mis-reported the meeting.

Tears of joy must have flowed out from the child seeing her father after so many years . Principals should keep away from family matters and should not interfere in family disputes but stick to their job of supervising the activities of the school .

Stanley do I thank you for your wit ? Dunno whether you have a kid or not, but if thats what you feel when your kid cries because she is genuinely confused and disturbed , you need some serious help. And where would the principal go when an unknown person visits unannounced into the school ? The kid is in this school for last three/four years (admitted mid session)  and this "natural father who can manage to induce tears of joy in a small kid at his first meeting in ten years" was busy playing house with his new family all this time . There are good and bad  examples in all groups and if you accidentally meet a bad person in your group ,its not wise to extend support without doing a reality check. Everybody's story is not similar to yours ,you see !!!

Originally posted by : Moonlight_8
	Originally posted by : Tajobsindia Originally posted by : Moonlight_8 . Also a 11 – 12 years child does not cry seeing her father it is over-reaction of a principal who could not handle the situation and thus mis-reported the meeting. Tears of joy must have flowed out from the child seeing her father after so many years . Principals should keep away from family matters and should not interfere in family disputes but stick to their job of supervising the activities of the school . Stanley do I thank you for your wit ? Dunno whether you have a kid or not, but if thats what you feel when your kid cries because she is genuinely confused and disturbed , you need some serious help. And where would the principal go when an unknown person visits unannounced into the school ? The kid is in this school for last three/four years (admitted mid session)  and this "natural father who can manage to induce tears of joy in a small kid at his first meeting in ten years" was busy playing house with his new family all this time . There are good and bad  examples in all groups and if you accidentally meet a bad person in your group ,its not wise to extend support without doing a reality check. Everybody's story is not similar to yours ,you see !!!

Moon light you can name me as Sunshine (for the Opposite statements )

Yes i have a kid ? So i am well aware of what a child faces.Put yourself into a father's shoes and than you would realise  . You are looking only under one side that too only that which is favourable to you for your sister , hence talking about emotions and sentiments from one side  . Hence you are looking at the child as though she is your sisters property . Tendency of seeing child as a ‘property’ and not as a ‘person’ has dangerous.Joint Custody and or Visitation and or Joint Parenting are more of a Child’s right.Denying the same is a direct and willful violation of the prime duty of parenthood and is a heinous form of child abuse.Not just parents, no body has the right to take away a child’s right to know bothher parents,  and extended families / friends on both sides .

"Tendency of seeing child as a ‘property’ and not as a ‘person’ has dangerous."

Exactly my point Stanley. A child is not a property that can be bought and hired out to caretakers for a long period of time when you wish to enjoy life or singlehood independantly. And joint parenting should be done will fully by both parents. One of them can't take a leave from it since bringing up a kid is not a joke.  When one parent is takes it willfully and the other is bothered about only his resettlement and new life , it surely is a joke for the little kid. She doesnt know why this "natural Father" left ,where all places he lived, with whom he got married ( he did not even bother to introduce the kid to his future partner to see if they both gel well or if his other kid gels with his natural kid before his marriage) and there are certainly numerous instances where in this person ,if he had taken his "natural fatherhood" seriously could have gotten our sympathy and support. Parenting is not a seasonal job which you (I mean any person man/woman) can take up when they get this parenting bug in their head and just shake it off their sleeves when they wish to lead an independant and non-intrusive life. 

I have read many cases here in the past few days and found out that most fathers make conscious efforts to be with the kid in her/his all day to day activities be it schooling, tutions, hobby classes, weekends , excursions, birthdays etc. One sure dont need an invitation to remember and attend your own kids birthday. A father has the means and duty to throw birthday parties on the kid's behalf if the mother cant manage. What I mean to say here is that there should be a genuine intention to do your duty as a parent rather than try to harass the ex spouse and drag the kid into court when the "Parenthood" bug strikes.

DO remember that denying one's child an open door into the house ( non -interference from child is not a pro- parenthood clause I think) is also a heinous child abuse ,something against which a toddler/ small kid can never appeal . Well ,thats my take on my sister's case and yes, we are emotional about her and the kid as well. I agree again that custody is a debatable topic and we wish an amicable (meaning kid is spared from appearing in court) settlement.

Can you plz explain the kidnapping comment (It does not make sense to me ,our learned friend is talking about kidnapping their own child and where in the contex of indian law there is a law in force to state that parents  can kidnap their own child . Than every custody case woud be acccompained by an FIR filed for kidnapping against the other parent who has custody ) We did not kidnap the kid at any time. Her husband (now ex) was unwilling to keep my sis and kid in his company provided house (in 2003). He himself left her at our home and stayed in a hotel room then.

I dont want to get into the circumstances what made them split seeking MCD I presume . But mark my words if the father really loves the child come what may he may drag this case right upto to the supreme court . And one day or the other the child would be called and interviewed . Since the wishes of the child would be considered . 

If its a case just to harass your sister it would not go very far . And be aware that cases dont come to a judgement over night . It takes years and as her daughter is already 12 maybe the case may run for a another 6 years and than court would say that the child is a major as she has reached the age of 18 yrs . Hence it would be at liberty for the child if she seeks to visit either of them . 

The kidnapping thing in red is not directed at you its the other way round for our learned friend Mr Chandreshekar since i wish to debate it with him and in the contex of indian law how this case would be treated as a kidnapping case