Child custody jurisdiction
Babu
(Querist) 20 December 2014
This query is : Resolved
DearAll,
Please suggest me what to be done in this case. Any good citation would be really helpful?
I am physically challanged with 100% of disability. My both legs were afftected by polio at my chilhood. I Cannot walk. Working as Teacher (Govt. employee). I married one lady in 1998. A boy was born in 1999 Divorced in 2004. The boy's custody forever with mother. But she expired in 2005. The boy is living with mother's parental family, with the brother of his mother. That my son was adopted by him.
I married another lady in 2005 according to Hindu customs and rites. Got a male child on 13-09-2005. And a female child on 27-08-2007. She converted into Christian religion in 2002 (Took Baptism - I have got her baptism certificate ). She committed for criminal activities towards me and my father. She punished by the court u/s 323 and 506 of I.P.C. She also beat young aged children where medical treatment was given (prescriptions available). My wife discontinued 10th class. I encouraged her to continued studies, joined in B.A. open university. But she failed to continue it. She developed extra marital relationship with one guy at where we lived. And she left my society on 14.04.2013 along with female child where a missing complaint was filed. Our male child was staying with me. After 3 months she came to me along with the female child and stayed for 20 days and went away along with the two children on dt. 25-07-2013. At the time they were studying in private school under my custody. I called her to come back. But she did not heed. I used to send articles, dress to children. My wife filed maintenance case u/s 125 Cr.P.C. where she is residing. I filed O.P. seeking Restitution of conjugal Rights But she remained absent after counseling made. Ex-parte decree passed in favor me. And the M.C. case was transferred to my place on the ground of my disability. I am paying the children school fee upon the request of the school management (Through phone call) as the mother not paying. The male child is in 10th year studying 4th class. The female child is in 8th year studying 2nd class. The children may like to continue with their mother as they are residing with her now. The female child told me over the phone that she is afraid of her mother. My wife also wrote me a letter stating that she is working as tailor at her place She joined children in a corporate school. She is residing in her parental house though I called her to come back. She is getting trouble to pay children school fee which are heavy. Requested me to send school fee. And she also wrote me if I pay school fee she can withdraw the M.C.. I already sent the school fee and continuing. I wrote two letters with calling her to my conjugal society otherwise send the children to me in view of welfare and future of children. Which were not replied till now. Last letter to her by me on dt. 16th Novemer, 2014.
Me and my father are very much interested towards the children. As they are very attached us.
The male child born in the place where they are residing now. And the female born at my place. They stayed with me upto July, 2013.
Now my questions are:-
1. I would like to file custody petition. Where should I file? Either in my living pass – RCR decreed, The children grew here
2. or the place of residence of children right now. – The male child born there and they are residing there from July, 2013 continuously – Studying there.
3. What is jurisdiction point to file child custody petition?
4. Is there any possibility to execution RCR decree. And what is the procedure?
5. Am I eligible to get child custody?
6. Is she eligible to get maintenance after RCR decree passed in favour of me. (Ex-parted)
7. What is the time limit to re-open the RCR set a side by her?
8. She ready to give divorce. I am not interested to leave the children with her. And I think she may change.
Seeking your valuable opinion on these points. Kindly reply as soon as possible.
With warm regards,
BABU
+91-9550584717
Babu
(Querist) 20 December 2014
Double entry. So deleted.
Devajyoti Barman
(Expert) 20 December 2014
1-3. Where the children are ordinarily residing at the time of filing , i.e., their mother's place. LATER APPLY FOR TRANSFER.
4. Yes file execution by way of attachment of her property.
5.Yes
6.yes
7.do not give divorce.
Babu
(Querist) 20 December 2014
Hi, Good morning.
Thankyou for your speedy reply sir.
I have a doubt. Sir, RCR passed in favour me. I am ready to maintain her and ready to get back her thogh she did several mistakes . I am interested also on children. I am ready to pay my innocent children. But, why I am to pay herself?
Can you give me any sections . citations please.
BABU.
Babu
(Querist) 20 December 2014
And Barman sir,
I came to know that Physically challenged person need not to pay maintanance when wife denied to serve him.
And Kindly disclose me that the time period to set aside the exparted decree and also time period for appeal / challenge. She was absent in Highcourt of A.p. when I filed transfer petition of M.C.
Devajyoti Barman
(Expert) 20 December 2014
There many decisions of SC where it has clarified that decree passed in RCR is no ground to avoid maintenance.
However you can take this plea to try your luck.
prabhakar singh
(Expert) 20 December 2014
ANSWERS:
ABOUT QUESTIONS 1,2 & 3:
"THE GUARDIANS AND WARDS ACT,1890:section 9. Court having jurisdiction to entertain application:(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
HENCE AT PLACE THEY ARE AND BEFORE THE DISTRICT JUDGE.
ABOUT Q.4 & 6 & 7 & 8":
EXECUTION PETITION LIES BEFORE THE COURT WHICH PASSED RCR DECREE BUT IT IS NOT EXECUTABLE PERSONALLY,DIS-OBIDIANCE OF DECREE BY HER ENTITLES YOU TO A DECREE OF DIVORCE BY A SEPARATE PETITION OF DIVORCE.
ALSO DIS-OBIDIANCE OF RCR DECREE BY HER DIS ENTITLES HER CLAIM OF MAINTENANCE UNDER ANY LAW INCLUDING 125 Cr.P.C
HER CONVERSION OF RELIGION IS AN ADDITIONAL
GROUND OF DIVORCE.
ANY EXPARTE DECREE CAN BE SET ASIDE BY AN APPLICATION UNDER ORDER 9 RULE 13 C.P.C if moved with in 30 days from the date of knowledge she would claim,she came to know about.Even delay can be condoned under section 5 of LIMITATION ACT.
ABOUT Q.5:
Under Hindu Minority and Guardianship Act, 1956 as laid by section 6 you are natural
guardian.
"6 . Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in
respect of the minor's person as well as in respect of the minor's property (excluding his or
her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided
that the custody of a minor who has not completed the age of five years shall ordinarily be
with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after
her, the father;
(c) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the
provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)
Explanation.- In this section, the expressions 'father' and 'mother' do not include a stepfather
and a step-mother. "
TO ME THE EXPRESSION ''he'' here includes
''she'' also.
For custody courts adjudicate on basis of circumstances that fore tells about best interest of children.
Her conversion goes against her while unfortunately your disability incapacitates
you to maintain and take personal care of the age they are just now.
However yet you should file the custody petition.
Babu
(Querist) 20 December 2014
Thankyou Prabhakar sir for your valuable opinion.
Babu
(Querist) 20 December 2014
Baman & Prabhakar sirs,
Is there any possibility to ask the High court of AP & Telangana for prior permission / or any order to file the custody petition at my place?
BABU
09550584717.
R.K Nanda
(Expert) 20 December 2014
consult local lawyer.query too long.
Rajendra K Goyal
(Expert) 20 December 2014
Agree with the expert prabhakar singh ji.
ajay sethi
(Expert) 20 December 2014
well advised by prabhakar singhji
V R SHROFF
(Expert) 20 December 2014
Well advised
File Custody case where children reside.
District court/or Family ct .
No other place.
Considering 100% disable, try to compr.. in interest of children, may give her liberty.
Babu
(Querist) 21 December 2014
VR Shroff sir,
Good morning sir.
Thankyou for you advise.
Before the marriage she knows about all the facts regarding me. I explained all in 7 pages letter. She wantedly came. And I looked her well. I know she only support to me. When she was known to me about her extra marital affair I feel but I compromised in the interest of children. Taken her back. Taking advantage of this point she brought the children and went away after 20 days when I brought her back. When she left and when my friends & relatives advised me, to file divorce I denied them and applied for RCR. Now also I am talking to her and children over the phone. discussing every event. Asked to come along with children. But she denying.
I am helpless. In compulsory circumstances I am fighting legally.
I consulted her parents, her caste, village elders and her counsel.
She is not listening. As there is no option, they are supporting her.
In her absence they are supporting me.
BABU
9550584717.
Babu
(Querist) 10 January 2015
Hi all,
Good morning.
Can you please give me a suitable suggestion?
I filed RCR petition after she file MC u/s125 CrPC.
She made her appearence before the court but did not choose to file the cunter inspite of
giving sufficient time even on imposition of costs and she was absent.
Costs not paid and there was no representation as such. She was set exparte.
I got RCR decree (ex-parte) against my wife on dt. 05.09.2014. She knows about it.
I told orally and she refused to come back. Voice recorded in mobile phone. In that RCR court directed
my wife to joine the matrimonial society of me within two months from the order date.
There is no property on her name to file for attachment.
My wife also wrote me a letter stating that she is working as tailor at her place She joined children
in a corporate school. She is residing in her parental house though I called her to come back.
She is getting trouble to pay children school fee which are heavy. Requested me to send school fee.
And she also wrote me if I pay school fee she can withdraw the M.C.. I already sent the school fee and continuing.
I wrote two letters with calling her to my conjugal society otherwise send the children to me in view of welfare
and future of children. Which were not replied till now. Last letter to her by me on dt. 16th Novemer, 2014.
A criminal case u/s 324 filed upon my wife when she went out of home (before one and half year).But, she did not
know about the criminal case and now it is closed and referred an un-detected by police.
I am going to file child custody petition.
Today I am sending her RCR order copy through Regd. post but I am not calling / not talking about her joining.
Now my querry as follows:-
1. Is the husband who got RCR bound to get back the wife if she comes back within one year?
2. Is the husband has any right to ask her for written agreement for
future safety? If yes, For what conditions should I ask?
BABU, Hyderabad.
+91-9550584717
Babu
(Querist) 10 January 2015
I think she has to change
Babu
(Querist) 13 February 2015
Hi all,
Good morning.
My marriage was performed on dt. 13.02.2005
We got a male child on dt. 13.09.2005
And a female child on dt. 27.08.2007
Both me and my wife lived happily up to six years after marriage after that disputes arose between us.
She left me with female child on dt. 14.04.2013 when I came to about her extra marital affair.
Again came to me in July, 2013 and again left alongwith the female and the male child on dt. 25.07.2013. (Last time)
She filed M.C. u/s 125 Cr.P.C. at her parental place in November, 2013
I filed petition for RCR in January, 2014.
I also filed an I.A. u/s 26 of H.M.A. and withdrawn the I.A. on dt. 05.09.2014 while the RCR decree passed in favour of me. No order in the custody I.A.
Decreed the RCR in favour of me on dt. 05.09.2014 (Ex-parte)as she did not choose to file counter.
I informed about the RCR decree to her over the phone call, But not in written. And she refused orally to come back.
I am paying children school fee and sending stationery & clothes etc by post from August, 2013. But due to my physical disability I failed to go to see my children regularly. But frequently phone calling to my wife's mobile and speaking with children. and also calling to children school.
I have not failed either for Judicially separation or for Divorce and I am not thinking to do so right now. M.C. case transferred to my place from her place due to my physical disability. And is in pending. I have to file counter in the M.C.if she contested. But I came to know that she is not interested to contest the M.C.
Now I am thinking to file petition for Child custody. I am verymuch interested in children as they are very attached me. I and my oldaged father feeling about the children.
Query:-
1. Is it the right time to file child custody before one year of RCR decree passed / Before Judicial seperation / before go for Divorce and in the present circumstances
2. She is working as tailor. and not able to maintain the children.
3. I disclosed some more grounds for child custody in my above previous queries.
