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rajeshkumar (it)     19 March 2013

Habeus corpus for child custody

hi.

I have a 4yrs 10 months old son who was raised by my sister and mother... my wife desserted him when he was 5 months old... i and my wife work in Bangalore and travel to chennai on all weekends to see my son fullfill all his needs.. but my wife travels once in 6 months for 1 or 2 days... basically not inerested on family life.. last two years we lived separate;ly in bangalore... when I applied for a null and void marriage case in Bangalore ... she came to chennai and took him to her village with her father's help.. he was studying in the best school in chennai..

so I files HCP in chennai high court and the bench judges orderd to continue his education... now during vacation for 2 months she will take him away and I will not be able to see him .. he is also not willing to go with her to her village..

can I file a HCP in high court to prevent her taking him to her village or atleast alternate custody ?

pls suggest..

 



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 2 Replies

Tajobsindia (Senior Partner )     19 March 2013

Option 1. File Petition under GWA citing reference of HCP order and agree for alternate visitation as and when she files therein for visitation and meanwhile file separate application before same Court seeking injunction with which also "alternate' visitation during the pending of main petition could be granted to parties.

If you follow above procedure you are basically forming grounds for you being more suitable for permanent custody of child r/w maintaining status quo of child and simultaneously agreeing (as and when occasion arise) for alternatively allowing parents visitation instead of again opting for HCP which will only give temp. relief.

Option 2. Alternate would be for your sister r/w your mother to apply for permanent custody of child which would entitle both of you (biological parent) to apply for visitation. Naturally in this method when father is alive custody may not be granted to your sister / your mother but the moment they apply you also lay your claim that will make the whole contest neutralised if natural mother also applies for permanent custody.

Here if you ask your sister / your mother to follow this procedure then what will happen is Court will first decide if custody should be given to your sister / your mother and in pending adjudication natural parents would get as per arguments respective visitation (alternatively) and then Court will decide if permanent custody could be given to you followed by natural mother in that Order. Only first two will get decided early so your main purpose is anyhow solved at trial Court itself.

Also in my opinion neither biological parents are fit for permanent custody based on this and your previous briefs as a child needs physical presence of either of the biological parents when they / either are alive for overall growth and absence next amicus if found fit is granted permanent custody. This is just a thought purely mine and should not influence your prospective acts before a competent Court. 

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rajeshkumar (it)     20 March 2013

Thank you so much for your time and valuable suggestion ..

option 1 would be viable for me , as I need a permanent solution .. very difficult to trvavel 365 kms in the weekends to meet my child .. also would like to spend my time and raise my child in my presence..

however, my child's vacation starts by April 10th.. and 2 months he will be away , i may not be able to meet him and he is also not happy to go with her to her village.. by the time I apply GWA or Injunction order to get her to the court it may take more than a month... will there be any other petition which is speedy like HCP to make them appear in the court once she takes him away on april 10th ..


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