Ex husband fled to us with my daughter

1. Knowledge of the order on visitation by him can be proved by showing his or his legal representative presence on the day it was orally announced or a copy dasti allowed by both sides.


2. Position to fulfill that order can be proved if he left after 4^th. May with knowledge of the Order is another pre-condition.


3. Then only any willful disobedience of that order comes into picture to get releif by your side and since it might have been filed under S. 10 and S. 12 of Contempt of Court Act, 1971. Both Sections of The Act, 1971 are civil in nature so que. of surrendering passport does not now arise via this Application / in such applications as passport surrender issues comes under criminal law domain.


But, here is a interesting case brief where HC Notice after some admission pleadings may not even be serviceable to him if his erstwhile family remaining here in indian soil refuses to receive the Court Notice which they have full right of as STATUS of spouse is changed. Now dependent upon already filed Memo of Parties if there is a mention of alternate service address there i.e. say of his US address / Employer address then only it could route through concerned Ministry in Delhi that also after lot of persuasive pressing civilian under the table pleadings - there goes few months / year to chase babus in Delhi and further follow up in Arizona’s with a local professional bailiff(s) that also if Indian Consulate General's Office in Ariziona convinces local County Court to service bailiff Notice in a civil matter whose Signatory India is not!. Now meanwhile even if your side manages some ex-party Order on alleged civil Contempt then I reserve serious doubt if it can be Executed as it will be against well laid principles of Natural Justice to respondent ex Husband side !

Noted your current status reply. If current status is that of DIVORCEE then why till now use SEPERATED word! Both have far reaching legal meanings while giving replies by me which I already inked based on reading separated status !  However this is not a blame I am throwing on board I understood people come here with laymen's knowledge of Law.


PS: Lady I sincerely wish you the very best now that you have reviewed all available remedies and allow me to clean from this board discussion and let others share their wisdom if any on pressed facts, as I have nothing more to value add to this query in absence of date of his leaving.

Hi,

1.Well he did not know about the court order when he left for US. But on 23rd May I sent him a mail with the copy of  court order (at both his official email id and personal email id).. Both the mails were delivered. But obviously he did not come back to India to fulfill the order.

2. Also his family stays in the Indian address where my ex husband used to stay in India and they receieved the copy of the court order. But they refused to take it stating that my ex husband is out of contry.

3. Also on 21st May when I went to pick up my daughter his family told us that he has left for US with our child. Then I left a copy of order with them.

Does not it become the contempt of court in that case? Please advise...

So he was fully aware of the court order. But still he did not come back from US to India to comply by it.

Dont waste time and file writ of Habeas Corpus petition in the High Court against your US Immigrant husband to produce your child before the Court and let the court decide the custody of the cbhild according to law since interim custody order is there.

No contempt of court.  He was not aware of the court order.  His family members do not have receive court orders on his behalf.  Also, his family members have no obligation to inform about the court orders, when you left a copy of the order with them.

Both of you are Indian parents, and hence indian court has complete jurisdiction in your matters.  You dont have to go to US courts.

You do not have to report missing child.  You have to file immediately Habeas Corpus in your jurisdiction High Court seeking them to produce the child immediately.  You can state the facts as they are in the petition - 1. dishonored court orders, 2. Removing the child from the country without any form of intimation to you and 3) your concern about abuse based on your child's earlier statements that she desires to have regular contact with you.

G.O.P is the petition under Guardian ship act and Hindu minors and guardianship act to give you custody of the child as you are a natural guardian.   Custody orders are interlucotary in nature and they can be modified as circumstances change.   In your case, since divroce the child's circumstances have changed because the child has been removed from the country without even your knowledge.   You can file for full/sole custody of the child now as a modification to the earlier custody orders.

Have few questions.  How did your ex-husband get the child custody during divorce proceedings ?  Did your child state that she actually wanted to live her father ?   Per section 13 of guardians and wards act need to check the welfare and interests of child before determining the custody orders.    Most custody orders went in favor of mothers in case the child is a girl.   Or did you give away the custody to him by consent ?

Passport act 1967 section 10 (3) 9h) :

(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document,-

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.

I wonder on what basis court granted child custody to your husband ..... i sincerly doubt your integity !

Hi,

Can anyone please explain to me what happnes  once we submit an application of  habeus corpus in High court.?

1. Will the High court judge on his own ocntact his counterpart in US?

2. How much time will the enitire process take?

3. What is the expected outcome from this? will my ex husband be  told to come to India with my child?

can someone please walk me through the entire proces of  getting this implemented?

Thanks a lot

Hi,

Can someone please help me with the process and time for habeaus corpus?

Many Thanks

Firstly, India is yet to be a member of Hauge Convention on the Civil Aspects of International Child abduction, where mechasnism is provided to realocate the abducted child to the rightful spouse. But there is a Washingtong Declaration on International Family Realocation to whcih India is a party, which has provided necessary Legal Procedures concerning International Realocation through direct judicialcommunication. Your child was abducted from his native place that is India, and  removed by your husband from his "Ordinary residence" and Commity of Nations gives weightage to the child's  "Ordinary residence" in deciding custody of the Child. Secondly abduction of the child is not regarded as Criminal, as such FIR is not necessary but a writ of Habeas Corpus would lie against your husband who is an Indian origin, now in US with only immigrant  visa and not like those of H-1B Visa. It is high time for all of us to question the wisdom of Indian Government, as to why they have not acceded to the Hauge Convention on the Civil Aspect of International Child Abduction, which even provides travelling expenditure to the spouse battling for child custody accross the boarder.So move the High Court for issue of Habeas Corpus which gives speedy relief.

when a wife kidnaps child its her right and when husband does the same its abduction ?.. till now no legal procedure has been sucessful to solve these type of cases and in your case chances are even more slim as your husband is overseas ......preserve your energy for constructive things in life than running around courts !! give yourself time if you can , and if you don't want to give time than .....I don't know 

@abc:  it is best if you walk into an advocate's office with all your papers and discuss with him/her.  The issue here is that you have consented your daughter to your husband's custody during the divorce proceedings.   Your husband has legally taken the child with him to pursue his career.  Your daughter did not seem to have made any witness/affidavit in the court saying that she wants to be with you or she wants to visit you.  Those statements seem to have been made only to you, and based on those statements you moved the court for the interim custody.   There does not seem to be any contempt of court here, as he has not been served those orders.  

You will only get correct answer, only after carefully reading various court orders with exact dates of the events.  

You can file Habeas Corpus if there is an element of removal of the child illegally.  Please note that the "Ordinary residence" of the child is US now with her father.  

Someone reading all the court orders, will be able to determine if Habeas Corpus is appropriate or if you need to move the family/session's court for modification of the original custody orders.  

Since you also mentioned that you did not want the custody of the child in view of the welfare of the child.  It looks like you only want some visitation rights or keep some telephonic contact with her.   Is this something you can negotiate with your ex-husband via mediation ?    You can save all the advocates money and with that money you can travel to US to visit you daughter instead.   As a reciprocal agreement, he might bring her here once in a while, if you are not too offensive to him.  

You should have added sufficient clauses in the divorce settlement that he would inform you when he changes his place or moves the child out of the currently known location.   Please read the Supreme court judgement regarding a similar case :

https://www.lawyersclubindia.com/forum/SC-judgement-on-Visitation-rights-24654.asp

Absence of terms and conditions in the divorce decree does not disentitle you to file a petition under section 26 to modify your existing custody orders.

The above thread https://www.lawyersclubindia.com/forum/SC-judgement-on-Visitation-rights-24654.asp should educate you sufficiently as to what could still be done.