Custody of the twin children

Pradip (Querist) 28 September 2016 This query is : Resolved
A year ago I filed a criminal writ at Patna high court as per my lawyer , to get the custody of the child. But as I belong from Darbhanga , I should had filed from the family court but someone of the lawyer said family judge is not available, for that reason I filed criminal writ at Patna high court , but now my lawyer is something else and not listening after getting the money. She always tries to avoid me , now how to get my sons from my in laws house as they have force fully kept my children after the death of my husband who was in army.

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Raj Kumar Makkad (Expert) 28 September 2016
You shall have to withdraw your petition pending before high court with a permission to file the same before the concerned family court in whose jurisdiction those children are residing.

This is very easy process and your in-laws cannot retain the custody of children after death of your husband. Those children shall have to be handed over to you. Be sure. It may take some time.

What is the age of children?

Advocate M.Bhadra (Expert) 28 September 2016
First you should withdraw the case pending in High Court.If your children are minor then you can file a suit under section 7 of Guardians and Wards Act.

Section 7 in The Guardians and Wards Act, 1890
Power of the Court to make order as to guardianship.—
(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made—
(a) appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

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You can also file a petition under section 97 of Cr.P.C. in judicial Magistrate Court.

Section 97 in The Code Of Criminal Procedure, 1973

Search for persons wrongfully confined. If any District Magistrate, Sub- divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

Raj Kumar Makkad (Expert) 28 September 2016
Prior to going for 97 CrPC, it is necessary to ascertain whether your children also do want to accompany you or not. If they have been tutored to such an extent they they shall flatly refuse to accompany you then it is not advisable to adopt the procedure of 97.

P. Venu (Expert) 29 September 2016
In the given facts a Writ of Habeas Corpus is maintainable and this, if effectively pursued, could be more expeditious.