Help required!!!!!!

5 Yr kid in hostel? You and your wife feel they love him

Yes Sudhir, I spent 6 years in hell only for my child. I did not want to go for 2nd marriage, but to keep my son's cutody . She is a really careless lady/mother & did not want to spoil my son's life. Since 4 months she has not come to visit her son & I have to keep him in hostle to make my custody case strong.

Dear Ranjan

As per my opinion you should file a suit for custody of your child before civil court u/s 25 of Guardian and Wards Act read with section 12 of the act for interim custody and also filed an application for restriction order against your wife under Order 39 Rule 1&2 of CPC

25. Title and guardian to custody of ward.-

(1) if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

COMMENTS

(i) To invoke section 25 of the Act, the sine qua non is a ward leaving or being removed from the custody of his guardian. A guardian can by voluntary agreement vest another person with the custody of his child such an agreement can be remarked and the guardian can also invoke section 25 of the Guardians and Wards Act, 1890 that the ward has been removed from his custody. But once a custody has been decreed or ordered by the Court, the guardian cannot alter or revoke such custody unilaterally and extrajudi­cially, but can only move the Court for the variation, revocation or suspension of the order; Sibani Banerjee v. Tapan Kumar Mukherjee, AIR 1990 Cal 4.

(ii) If the natural or legal guardian vests another person with the custody of his child, he can demand return of the child, but if the other refuses to hand over the child, the child would be deemed to have been removed from the custody of the guardian so as to invoke section 25 of the Act. The maternal grandparents of the granddaughter were old, unable to maintain themselves, had misappropriated jewellery of the mother worth Rs. 7500, held that the child had been removed from custody of father and it is in the welfare of the child to return to her father; S. Abboy Naidu v. R. Sundara Rajan, AIR 1989 Mad 131.

(iii) The Court can order the return of the child if it feels that the welfare lies with the guardian. Whether the jurisdic­tion under section 25(1) is mandatory or directory, it can order a return only and only if it is of opinion that such return is for the welfare of the ward. The expression ‘may’ clearly invests the Court with the discretion to order or not to order return and ‘may’ order return only if it is of opinion that it will be for the welfare of the ward; Rajkumar Gupta v. Barbara Gupta, AIR 1989 Cal 166.

(iv) Where the child is in the factual custody of one who has no legal right and is detained against the will of the legal guard­ian, the child shall be deemed to have been removed by that other within the meaning of section 25(1). But change of custody can be ordered only if it is for the welfare of the child; Tarun Ranjan Majumdar v. Siddhartha Datta, AIR 1991 Cal 76.

(v) Welfare is to be considered in the widest sense of the term, though the father as natural guardian has a prima facie right to minor’s custody this may be negatived if infant’s welfare lies in keeping him in his mother’s or grandparents’ custody because children cannot be treated as chattel or property; Mohamed Khalid v. Zeenat Parveen, AIR 1988 All 252.

(vi) For determining ‘welfare’ of the child the questions to be considered are: (a) Who would have the better care and better consideration for the welfare of the infant? (b) Where is he likely to be more happy? (c) By whom the physical and mental development and comfort of the child can be better looked after? (d) Who has not only the desire but a determination, not only concept but also capacity to provide for a better education and round the clock nursing of the child? (e) Who would be available by the side of the child when the child would need love and affection, the care and counselling, the protection and patting up? In this case the Court held that welfare of child lies with mother as she was working as a teacher in a reputed school while the father was still in the process of establishing his business and had no time and money to care for his child; Jayant Barar v. Deepa Barar, AIR 1994 NOC 269 MP.

(vii) Personal law of the applicants has also to be considered while considering the welfare of the child. According to Hanafi School of Mohamedan Law mother is entitled to the custody of her daughter until she attains puberty while according to Shajjii and Malikii Law the mother is entitled to the custody of the minor child until her marriage. Held that the mother was entitled to the custody of her minor daughter also according to personal law and also the welfare was with the mother even though she was not financially sound as father; Suharabi v. D. Muhammed, AIR 1988 Ker 30.

(viii) A father can be deprived of the custody of his child if it is proved: (a) that the father completely neglected to maintain the child and (b) he had remarried and the step-mother may not treat the child kindly which may have adverse effect on mental and physical growth of the child; Jaswant Kaur v. Manjit Singh Marwah, AIR 1985 Del 159; See also Km. Sunita v. Shyam Kali, AIR 1982 All 2.

(ix) Guardian includes every kind of guardian known to law and that not only actual physical custody but also constructive custody of the guardian. If the persons who are not legal guard­ians were intended to be excluded from invoking section 25 of Guardians and Wards Act, 1890, it would have been very easy by incorporating such a limitation into section 25 or even under section 4(2) of the Act; Suresh Babu v. Madhu, AIR 1984 Mad 186.

(x) While considering an application under section 25 of the Act it is open to the Court to make any arrangement relating to the minor which he considers to be in the best interest of the minor. The Court directed that the child should be sent to a Boarding School as the acrimonious atmosphere in the house would have a bad effect on the proper growth of the child; Amrik Rai v. Sat­pal, AIR 1983 P&H 304; See also Meera Devi v. Shyam Sunder Aggarwala, AIR 1985 Ori 65.

(xi) Even in guardianship cases, if assertions of immorality, adultery or living in adultery are made there should be the same standard of proof as has been applied in matrimonial cases; Madhu Bala v. Arun Khanna, AIR 1987 Del 81.

(xii) The mother of the minor was driven out of the house by the in-laws after the death of the father and the children were forcibly kept by them. It was held that as the mother was the natural guardian after the death of the father and also becuase the mother was in a better position to maintain the children, custody was directed to be given to mother; Ram Prasad v. Poornima, AIR 1985 NOC 14 Del; See also Salamat Ali v. Majjo Begum, AIR 1985 All 29.

(xiii) Mother was seeking maintenance from the father. Held that as mother was unable to maintain herself, the custody of children should be given to father; Master Zubeen v. Principal Judge, Family Court, Lucknow, AIR 1984 All 147.

12. Power to make interlocutory order for production of minor and interim protection of person and property.-

(1) The Court may direct that the person if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

If the minor is a female who ought not to be compelled to appear in public, the claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

Any person to whom the temporary custody and protection of the property if a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property

COMMENTS

(i) By sub-section (1) of section 12, the Court is authorised to direct a person who has the custody of the minor but has not yet been appointed guardian to produce the minor in Court; Kirtikumar Maheshakar Joshi v. Pradip Karunashakar Joshi, AIR 1992 SC 1447.

(ii) If the Court has power under section 12 of the Act for the grant of temporary custody during the pendency of the proceedings it will have power as well to modify or vary that order if the circumstances so demand; Narinder Kaur v. Parshotam Singh, AIR 1988 Del 359.

Temporary injunctions

1. Cases in which temporary injunction may be granted

¹Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to ²[defrauding] his creditors,

³[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]

the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property³[or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

⁴[* * *]

1. Amendment of Order XXXIX Rule I made by Act No. 46 of 1999, section 30 has been repealed by Act No. 22 of 2002, section 16 (w.e.f. 1-7-2002).

2. Subs, by Act No. 104 of 1976, for "defraud" (w.e.f. 1-2-1977).

3. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

4. Sub-rule (2) ins. by Act 46 of 1999, sec. 30 and section 30 of the Act 46 of 1999, by which it was so inserted, has been omitted by Act 22 of 2002, sec. 16 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-For Order XXXIX, for rule 1, substitute the following rule, namely:-

"1. Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors; or

(c) that the defendant threatens to dispossess the plaintiff, or otherwise cause injury or loss to the plaintiff,

the Court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting damaging alienation sale, removal or disposition of the property, or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders." (w.e.f. 26-7-1956).

Calcutta.-In Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof; and

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

"(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil person for a term not exceeding six months, unless in the meantime the Court directs his release. (3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and, out of the proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto." (w.e.f. 3-2-1933)

Gauhati.-Same as in Calcutta.

Kerala.-Order XXXIX,-

(a) renumber rule 1 as sub-rule (1) thereof;

(b) in sub-rule (1) as so renumbered, in clause (a), after the words "wrongfully sold", insert the words "or delivered";

(c) after sub-rule (1) as so renumbered, inset the following sub-rule, namely:-

"(2) In case of disobedience of any order passed under sub-rule (1) the Court granting injunction may proceed against the person guilty of such disobedience under sub-rules (3) and (4) of rule 2 of this Order." (w.e.f. 9-6-1959)

Orissa.-Same as in Pama.

Patna.-In Order XXXIX, in rule 1, at the end, insert the following provisos, namely:- "Provided that no such temporary injunction shall be granted if it would contravene the provisions of section 56 of the Specific Relief Act (Act 1 of 1877): Provided further that an injunction to restrain a sale, or confirmation of a sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the property or objection to the sale, or to the attachment preceding it, before the Court executing the decree."

2. Injunction to restrain repetition or continuance of breach

(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

¹[* * * ]

1. Sub-rules (3) and (4) omitted by Act No. 104 of 1976, sec. 86 (w.e.f, 1-2-1977).

STATE AMENDMENTS

Madhya Pradesh.-In Order 39, rule 2, in sub-rule (2), insert the following proviso:-

"Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38

(b) to stay, the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismmissal, removable or otherwise termination of service of, or taking charge from, any person appointed to public service and post in connection with the affairs of the State including any employee of any company or Corporation owned or controlled by the State Government; or

(c) to stay, any disciplinary proceeding, pending or intended or, the effect of any adverse entry against any, person appointed to public service and post in connection with the affairs of the State including any employee of the company owned or controlled by the State Government; or

(d) to restrain any election; or

(e) to restrain any auction intended to be made or, to restrain the effect of any auction made by the Government; or to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished; and any order for injuction granted in contraven- tion of these provisions shall be void." [M.P. Act 29 of 1984].

Uttar Pradesh.-In rule 2, sub-rule (2), interest the following proviso:- "Provided that no such injunction shall be granted-

(a) where no perpetual injunction could be granted in view of the provisions of section 38 and section41 of the Specific Relief Act, 1963 (47 of 1963), or

(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from, any employee including any employee of the Government, or

(c) to stay any disciplinary proceeding pending or intended, or, the effect of any adverse entry, against any employee of the Government, or

(d) to affect the internal management or affairs of any educational institution including a University, or a Society, or

(e) to restrain any election, or

(f) to restrain, any auction intended to be made or, the effect of any auction made, by the Government unless adequate security is furnished, or

(g) to stay the proceedings of the recovery of any dues recoverable as land revenue unless adequate security is furnished, or

(h) in any matter where a reference can be made to the Chancellor of a University under any enactment for the time being inforce;

and any order for injunction granted in contravention of these provisions shall be void".

Feel Free to Call

Originally posted by : Rajeev Kumar
	Our most respected Nadeem sir has thrown light on this query in depth and nothing need for further addition.

I didn't understand so long text and codified language i.e. bare act. Can you please make me understood what Nadeem sir(most respected according to you) wants to say after all.

In short, I would like to hear from you and request you to add your views minus the bare act.Kindly oblige.

Thank you,

Regards,

1. taking action may depend upon the M Factor she uses.

may be, there is FIR already filed & u r not knowing.

2. what possibly r u trying to achieve by making the kid stay at hostel at such young age ? such step wont help u make ur custody case strong.

Thx Nadeem Jee!!!!

When my wife left, she tried to take son alongwith her from hostle, but i was anticipated so I had given the instructions to school not to hand over child to her mother. Afterwards, she did not come to meet him.She is talking him on phone.

So there is no case, no police complaint, no communication from last 4.5 months & as i will not go for 2nd marriage, i am not in hurry to file case for divorce. In such situation, I am thinking atleast my son is with me & did not want to spark the issues.

What u suggest, should i go for custody right now or should wait for another 3-4 months , as she is not coming to meet him, in that case my custody case will go on positive side. Pls advice.

So, the son was already in hostel when u separated. Keep the things as such for some more time, then start with GWA case

As per my limited understanding of law,

Your son is in your custody ..so no need for you to file GWA. Let your wife file it and then you contest.

Putting your 5 yrs son in hostel does not show your positive side. He should have atleast elder's / yours company at home.

You are right! But no other option. I m settled in Delhi & my family is in Punjab.

Moreover,My wife would be more agressive to take the son alongwith her if he is staying with me. I chose the long run motive, to keep my son away from me but to provide him better education, care etc. My son is in Delhi hostle only , I usussaly go there to see him (15 days in a month).

Dear Rajan:

What are you doing? Your 5 Years Old Son in Hostel? What he must be going through? How will it help to gain his custody?

I think it may go against you, that is since you can't take care of your son so you have lodged him in hostel. Keep your son with you and show it that you can & are capable taking care of your son. Fulfill all duties like a mother does. Prove to the court that you are the best father as well as a mother to your son.

Don't spoil your son's life.