Mr. Roy, 

You are a very senior advocate. I am vary junior.

Please add some value to the society while leaving your ego. 

DOYA KORE SAMAAJER VALO KORUN !!!

@ Mr. Rocky Smith,

At the oral request of the authorities of LCI  I JOINED IN THIS PORTAL TO RENDER SERVICES TO THE NEEDY SUFFERERS.  I am a professional of 59 years Court experience but I AM AFRAID TO SAY  'am being disturbed by some non legal persons of palpable knowledge in law and legal jurisprudence. Other old and eminent Experts are also facing the same maladies time to time which they expressed to me privately. Question of ego does not arise because I HAVE NO EGO OR AT ALL. As because my fees are hefty and not affordable to pay by ordinary litigants so I VENTURE TO SERVE THEM  with my costly advices and opinions free of charge considering welfare to the society.  I also think my time is golden.

Mr. Roy,

Let’s have a close look about the given facts as your “OPINION IS BASED UPON THE GIVEN FACTS BY THE AUTHOR”

The author has posted: -

a) I want to see the welfare of the kids

You ignored this given fact, as he clearly mentioned that he is willing to see the welfare of his kids. From a senior advocate we expect that you must clearly view the expectation of the quests and explain about the process to file injunction under Guardians & Wards Act in one shot.

b) shall I get at least visitation rights in (crpc 125) case.

The answer is no - as you explained based on your knowledge and citation of High Courts.

So clearly, your answer is “BASED UPON THE GIVEN FACTS BY THE AUTHOR” however, not all.

Sorry to say, that this forum is not a place to show your rank by showing the structure of your fees details.

The value of half advice is ZERO and jeopardizes people like the way “half truth is worse than a lie”.

@ Roy .

We are people fighting false cases filed against us as party in person.We go out as a group helping one another fighting their cases .  

I would like to state that we are happy fighting our cases to our satisfication . Rather than tagging around lawyers or being dependent on them with hardly any knowledge of law and just seeking date after date to earn their fees.We have even come across people who are figthing false cases filed by lawyers on behalf of them   for which they have to pay no fees, as their fees are recovered from the compromise they make in terms of a settlement .  

"Corruption is the abuse of power by a public official for private gain or any organized, interdependent system in which part of the system is either not performing duties it was originally intended to, or performing them in an improper way, to the detriment of the system's original purpose. The abuse of public offices for private gain is paradigmatic of corruption."

Corruption is prevailing in all sectors of humanj society  since remote period which cannot be eradicated.  In our legal profession there are two groups of practioners namely (1) those who entered in this profession for earning money; and (2) those whor render services for gaining name and fame without caring monitory gain. You might have seen first group legal practitiones and being dissatisfied with their mode of services and performances decided to conduct your own cases in person.  NO PROBLEM DO THAT.  But the second group of practioners shall not be affected if the litigants fight their own cases.  Because  they have proven success in records so litigants will queu at their chambers gate always with good fees.

Mr. Rocky Smith,

It is difficult for me to describe the quantity of water in an OCEAN before a FROG IN THE WELL.

Mr. Roy,

I understand your frustration, now you have given comments in palpable English which is out of the topic/debate as I have pointed you that your previous advices are not on all given facts.

Are you meaning a father will never grant  visitation right of his children? If yes, then please read the following judgment of Honorable Supreme Court of India where the Responder’s/wife’s prayer to modification (Cancelation of visitation rights of father) of visitation rights has been rejected.

Supreme Court of India

Vikram Vir Vohra vs Shalini Bhalla on 25 March, 2010

Also Mr. Roy,

The judgment that you have given as a citation is completely out of the facts from the query of the quest. This citation is upon rejection order of child custody and the query of the quest is about visitation right.      

@ Mr. Rocky Smith,

I am sorry to say that you might have overlooked my earlier post made 2 days before wherein I categorically stated that father and mother can visit their children because it is their legal right. So I must say you totally misunderstood my views.

"The first thing we do, let's kill all the lawyers." 
                -William Shakespeare wrote this (Jokingly of course).

Pls guys, the Poet was only trying to make people laugh. He wasn't serious, so, pls leave the lawyers alone.

Oh Mr. Roy!

Well done! 

That means you have contradicted your own speech bellow !!!! @??@!!!

So whether I misunderstood or you made both me and the quest misunderstood ??????  

Originally posted by : Biswanath Roy
	Unless visitation of the child is refused by the mother a person cannot  seek for an order for visitation in the court.

Mr. Roy!

I think you need to modify your fees structure like a intern advocate.

@ Rocky Smith, 

Sorry to say , its not contradiction. My expressed views was related to the author's quest  who is asking for visitation after a lapse of three years non visitation. In my earlier post I also explained/ clarified why such a question will arise in dealing with the issue. After all it is a good gesture to catch my fault but not good without going through my earlier posts on this topic.

@ Mr. Compelled To Learn Law,

It transpires from your post that you might have wounded by law. Application of law to fructify your desired effect needs a special technique which can be compared with CHESS GAME.  To acquire such skill a lawyer needs proper develling under an Expert Senior. Your alleged quotation allegedly stated by " William Shakespeare " ended with the enormous increment of lawyers in his own country which is glaringly evident. So your such post can be trashed and to be thrown in the garbage.

Mr. Roy,

Sorry to say, now you are bullying me to become agree with you.

@ Roy  .....I wish to state to you  about  parens patriae. 

1. A non – custodial Parent has a right to meet his / her child.

2 Does not a  FATHER/MOTHER  need to wake up to re-claim your parental rights come what may be (THAT IS THE WAY OUT)

3 Only a crying baby gets milk ! (observe a breast feeding mother, she never feeds a child unless a child cries – so take natures clue from there now that you are blessed fatherhood/Motherhood )

4 The abridged legal reasoning presented brief is as below ;
 
This right of the Courts, have been guaranteed to the children across the world through various legislations including the concept of PARENS PATRIAE based on the best interest of the child in the AMERICAN LAW and THE ENGLISH LAW, and differently in other countries.

The State Interest: Parens Patriæ is the doctrine under which the state alleges an interest in the care and custody of children (and others not competent to represent their own interests). This doctrine, literally asserting that the king is the parent of the state, was formulated in England in the thirteenth century to assert the state’s role as guardian of those who were mentally incompetent. The notion that the king (or the
government) is the parent of the entire state is quaint; the assertion that the state has a compelling interest in the care, nurturing, and

 

……….The classical interpretation, for example, might appear to receive support from the fact the rights of parents over their children are limited, potentially override able, fiduciary rights. For suppose that, ab initio, these rights reside in the state under the doctrine ofparens patriæ and are entrusted by the state to the natural or adoptive parents. This seems to explain nicely the fiduciary aspect of the rights, why the rights are limited and why the state retains the right to judge when the parents have violated the trust. The state, on this account, is the trustor. As such, the state can set the terms and limits of the trust relationship, specify the ends for which it is constructed, and retain the right to determine when it has been violated.

………..Does not the state have, under the doctrine of parens patriæ, a responsibility to exercise parental rights for the benefit of the children? Can the state, unlike the parent, do no wrong in the exercise of its parens patriæauthority? Are there no limits on this authority? I believe that the state is at least as bound by considerations of the interest of the child as are the parents. The state’s right over children is both limited and non-absolute, as is the parents’.

(Re.: “PARENTAL RIGHTS AND DUE PROCESS”THE JOURNAL OF LAW AND FAMILY STUDIESVOLUME 1, NUMBER 2 (1999), pp. 123–150UNIVERSITY OF UTAH SCHOOL OF LAW)

Indian Position of Law:

The Hon’ble Supreme Court has reiterated its role as PARENS PATRIAE in case of such children in its judgments quite recently.

Re.: Contempt Petition (Civil) No. 394 of 2009

In Dr. Rajesh Ranjan Vs. Dr. Anupama Tandon & Anr.

Date of decision: 30-11-2010

CASE NO.: Special Leave Petition (civil) 4230-4231 of 2003

      PETITIONER: Kumar V. Jahgirdar

      RESPONDENT: Chethana Ramatheertha

      DATE OF JUDGMENT: 01/29/2004

      BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

      JUDGMENT BY: Dharmadhikari J.

      The Hon’ble Supreme Court had remarked:

“The High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however, taken a different view and reversed the judgment of the Family Court. On the basis of evidence on record, the Division Bench of High Court has formed an opinion that in the absence of compelling reasons and circumstances, the mother cannot be deprived of the company of the child to the detriment of the interest of the child. The High Court, therefore, set aside the judgment of the family court and directed that the mother should continue to retain exclusive custody of the child with visitation rights to her former husband. The former husband is allowed to keep the child on week ends either on Saturday or Sunday from morning till evening and he can also be with the child during half the period of vacations in the school. The stay of child with each of them during half of the vacations, is to be shared by the two parents under mutual agreement. The father is also allowed to visit the child as and when he likes with the prior intimation and mutual arrangements with the mother. The parties are also given liberty to seek necessary modifications in the arrangement evolved by the High Court.

With the above observations and modification, we maintain the judgment of the High Court.”

Civil Appeal No. 3500 of 2008 [Arising Out
          of S.L.P. (C) No. 31324 of  2007) BENCH C. K.
          Thakker & D. K. Jain CASES REFERRED TO
          Rosy Jacob v Jacob A. Chakramakkal 1973
          Indlaw SC 120 ACTS REFERRED: Guardians
          and Wards Act, 1890[s. 10, s. 25];                             
          Hindu Minority and Guardianship Act, 1956

                   The Judgment was delivered by: Hon’ble
                   Lordship Sh. D. K. JAIN

Granting custody to the father the court made
the following directions in para;

“3. The appellant will also allow the child to live with the mother during school vacations or on appropriate occasions.

4. Master Satyajeet shall be allowed to attend and participate in family functions/festivities subject to his school attendance and examinations etc. which are held in the family of her mother or during any other occasions as jointly agreed to by the both the appellant-father and the respondent- mother.

5. Any other further arrangements mutually agreed to between the appellant-father and the respondent- mother in the interest of the child."

Consequently, the custody of the child was restored to the father. It is this order of the High Court which is under challenge in the present appeal.

15. In Rosy Jacob Vs. Jacob A. Chakramakkal1, a three- Judge Bench of this Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents.Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of  1973 Indlaw SC 120 welfare of the minor children and the rights of their respective parents over them.

 

"809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other." * 

The order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court, as noted above, also do not require any modification. We, therefore, affirm the order and the afore-extracted directions given by the High Court. It will, however, be open to the parties to move this Court for modification of this order or for seeking any direction regarding the custody and well-being of the child, if there is any change in the circumstances.”

IN THE  HIGH COURT OF DELHI AT  NEW DELHI

SUBJECT: CRP No.276/2003

Date of Hearing :  March 15, 2004.

Date of Decision:   April  12, 2004.

Hindu Marriage Act  1955 -Custody of the
Minor Child Paramjit Singh Lamba    Vs. Smt. Prabjot Kaur                

CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT  SEN

“The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent.  Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality.  Every child requires exposure to and influence of both his parents.

It is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents.”   

IN THE HIGH COURT OF JUDICATURE AT
          MADRAS

DATED:    24.04.2007

CORAM :THE HON'BLE MR. JUSTICE S.
            ASHOK KUMAR

CRP. PD No.439 of 2007 and Tr. CMP. No.79 of
          2007

Hari Narayanan Vs. Meenakshi Narayanan                 

“…..The minor child is now aged 5 years. It is also to be noted that when on the earlier occasion the respondent came to India to attend the proceedings in the Divorce Petition filed by the petitioner, she had left the minor child at USA and therefore, it cannot even be contended that the minor child cannot live separately from the respondent / mother, the respondent for a temporary period.

………..The anxiety of the grand parents to see the grand child cannot be determined in terms of money. The parents of the petitioner are in the evening of their life.  Therefore, their anxiety to see grand child requires paramount consideration like the welfare of the child which also requires paramount consideration. Therefore, it will be only proper to direct the respondent to bring the child to India without any resistance taking refuge under the ex parte orders of the Superior Court ofCalifornia, which is not binding either  on the respondent or the Courts in India

……. In the above circumstances, the respondent is directed to bring the minor child Raahul Narayanan for stay at Chennai with the petitioner, father of the child, for one week during Christmas holidays and two weeks during summer holidays between June, July and August 2007. All the expenses for travel and stay of the respondent and child for the said purpose shall be borne by the petitioner himself.”

CASE NO.:      Appeal (civil)  6626 of 2004                                 PETITIONER:            Sheila B. Das

RESPONDENT:           P.R. Sugasree

DATE OF JUDGMENT: 17/02/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: ALTAMAS KABIR, J.

“On a consideration  of  the  provisions of Section  17 (3) of the Guardians and  Wards Act, 1890, it was also held that a minor's preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the  question of custody.

Reference was also made to another decision of this Court in the case of  Kumar V. Jahgirdar  vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the  minor child, the mother, who had re-married, was given custody of the  female  child  who was on the advent of puberty, on the ground that at such an age a  female  child primarily requires  a mother's care and attention. The Court was of the view that  the absence of  female company in the house of the father was a relevant factor in deciding  the grant of custody of the  minor female child

The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled between the parties.

MOTHER’S acts are a clear violation of the rights of the child as enshrined in UN Convention on the Rights of the Child (Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force on 2nd. September 1990, in accordance with Article 49 and ratified by India), which is openly being flouted by the mother.

American position of Law:
The same provisions of law and the role of the State as a guardian is revisited in portions of the article titled “ARBITRATION OF CUSTODY AND VISTATION DISPUTES” published in the NEW YORK LAW JOURNAL, Oct 25, 1994

The position is further clarified in yet another article titled “The Child in Court: A Subject Review” published by  the “Committee on Psychosocial Aspects of Child and Family Health” in the  AMERICAN ACADEMY OF PEDIATRICS PEDIATRICS Vol. 104 - 5 November 1999 (pages 1145-1148).

 

POSITION IN THE AUSTRALIAN LAW:

parenting plans

2.21 As a consequence of Schedule 1 of the Family Law Amendment Act 2003, parenting plans are no longer required to be registered. However, provisions of this division of Part VII are still applicable to the variation or revocation of parenting plans. The court may register a revocation of a parenting plan if it considers it appropriate to do so “having regard to the best interests of the child to whom the agreement relates” s 63E(3).

POSITION IN THE CANADIAN LAW:

Download from the website of the Canadian Ministry of Attorney Generalwww.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/section2.pdf

POSITION IN HONG KONG LAW:

2.147 The court can use its parens patriae jurisdiction to protect children when there is a conflict between the interests of the child and those of a parent or parents. Lord Esher MR in R v Gyngall 1998 described this jurisdiction quite well.

 Ld. Advocates who propagate here that child is only best in mother’s lap have no idea how good and or detrimental bad that same mother’s lap is all about as is evident from various findings of various Indian Court of Law till date. A Child custody be it including visitation to non custodial parent revolves around 'original ordinary jurisdiction of child" which means where child was born and lived initially till its removal by either parent. In instance case child was born to the query couple and lived with the couple till its removal by child's mother. A child is not a toy to play by either parent and be removed at whims and fancies and for that you need a express Court Order which custodial parent especially mother’s never bother to approach first.


Normally  non custodial parent cries like this chap who says and I quote him “I want to see my child at any cost” further I quote his baseless litigation instituted i.e. RCR to seek visitation of child ! No parent gets to see a child on mere filing of RCR ! With RCR you either make your other spouse return to matrimonial home that also willingly and or with addendum filing that of a petition U/S. 26 HMA R/w S. 10 FCA you approach same Court for express interim orders on child visitation meantime even exParty such Orders can be granted and later all the JD party has to do is to Execute it. This legal remedy this author fails miserably to understand by whomsoever legal opinion he took till date. However, knowing well what his reverse litigation is assumed to be about I omitted answering directly this legal remedy and instead tried to teach him the various Laws especially the great doctrine of PARENS PATRIAE which comes into play once a child is born be it noted on tombstone by laymen’s and experts alike here. Even Madras HC recent Judgment talks of this doctrine explecitly coupled with medical literature on subject matters.

Now, once a child is removed from its ordinary residence without any Court order the que. of 'illegal custody' pops and it sustains till fitness of natural guardian be it etiher mother and or a father (i.e. suing party) is announced by a competent Court.  Take these sentence as tombstone and still in doubt then first read commentaries of late Prof. Paras Dewan to Mullas on definition of “illegal custody' in child matters, then I prefer to discuss further especially with you. Also pay attention to several of the child custody precedents as well as valid preferential legal opinion "any contract entered by adults on behalf of a child is null and void which also includes child's illegal removal from her original residence without approval of a competent Court”.  


Today when a fathers raises visitation que. what he wants to raise legally is it not true! If so, then all child custody / visitation legal chapters U/s 10, 12, 17 and 25 GWA R/w S. 6 (a) HAMA R/w S. 8 and 10 FCA opens up since a child is custodial of STATE and not that of either of the parents till she attains majority age. However, no social person (here either parent) can be expected to takeimmediate legal remedy which is called benefit of doubt in sensitive family law matters be it even HCP when que. of illegal custody is writ remedied even before HC’s and showcausing good cause even some of the HC's have entertained HCP on post 2 months delay period after illegal removal of child social que. were well plead by appearing counsels to the petitioner side.

I don’t want people who mid way raise hands and say either I am not a legal person and or I don’t want to discuss further as is evident with your interaction with me in recent past.

well, ignore such writing if you don’t want to read them but don’t make a comment that either my English is palpable  or raise  que.i have seen your profile on LCI and that i am not a legal person ..

Now while attending court hearrings we observe that with the assistance of wicked counsel's  the following allegations are made by the mother is it not .

1. He is a drug dealer /gangster 
2. He will rape or brain wash the child  if female child is involved …

Their  suggestion that the respondent may rape his own child is nothing but foolish and absurd and as a matter of fact there is no provision in law for the ifs and buts of the opposite counsel .

Father has not provided maintanence for the child

World over in child custody cases the “custodial parent” can come up with only three level of allegations against “non-custodial parent”;

FIRST level that the other parent has caused upon me extreme levels of torture / cruelties even tried to burn me down etc. etc.

SECOND level that the other parent is not having good conduct and lastly if these two (bald) allegations are not enough to distance off the non-custodial parent from the life of child then the; 

THIRD level the custodial parent alleges before Court is that of s*xual harassment nature and all these three allegations one can read with wide open eyes in various court records (citations of various Courts across India as an illustration).

Father is rapist,dowry seeker ,paedoplic

Whats your view @ Roy . We wish to know from your 59 yrs experience of Practising Law .