harassment u/s 226 for custody

the child is unhappy with her father.

father not fulfiill the promise of rs 20 lakhs.

the daughter refused to go with her father.

under this circumstances father filed criminal caseupon you at hc u/a 226.

according to his reply take suitable action. therefore wait for his reply.

@ Author

You sent a PM to me I suppose for this query and mentioned that day after tomorrow your case hearing is before HC. I beg to pardon at such short notice I can’t do wonders for a party in the absence of complete facts either scan copies and or para wise mention of them in a query. However these besides the mild detour I concur from your query few assumptions and here are my replies;

1. Your MCD Terms and Conditions are fantastic as well as have several longterm loopholes. Fantastic in a way that you have primary custody of the child only and negative part of the agreement is that you donot have control over investment as well as visitation (long holidays) rights and I am not commenting on what were the compulsions to give away maint. rights of child as you two can’t enter into a contract on behalf of a child as it is null and void. In the eyes of law. However in my negative opinion your terms and conditions were a shortsighted MCD just to get away forma relationship with comfort of a child as custody.


2. You say you people got MCD in 2006. Then you mention that till date during March ending he has never shown the investment proofs to you. My que. is why did you not complain till date and now you are complaining when he wants extended holiday with his own child! Is it not your duty as custodial parent to ask Court each March ending SIP investment details from her father ? If you have complained you could have mentioned those here which I see missing. See keeping physical custody of child is one thing and protecting best long term interest of child is a continuous evolving process which many a parents in India during litigation fail to capture longer years interest of a child they simply want a quick fix solution to their adult problem thinking physical custody is with me I will look after child etc. etc. Had you complaint to a Court in these 5 years he would have been brought to task. These I also say due to simple que. that were you not aware of his SINGLE status post MCD and or during MCD? Had you made the arrangements during MCD in such a way that it could have been a supervised visitation then this que. of child non-cooperation and father being drunkard and living alone post MCD would not have cropped up. I understand she is a female child but the que. is what she not female child 5 years back ? Was he not single means without any female in house status person 5 years back ? Was he not drinking 5 years back? So then !!!!  


3. As far as 5 days or 2 months Notice to you is concerned for extended vacation custody, to me it sounds impractical for a simple reason post MCD no two party like to stay in touch unless and until in Agreement deed a line “That the custodial party will inform of vacation dates well in advance to non custodial parent…etc.” is mentioned. You be in his position ir-respective he is drunkerd or criminal or having no females in home etc. how on earth he is going to know 2 months before when are school / college holiday dates are and second post MCD you have a right to change your child school number of times so he can never check the exact dates of a particular school holidays. Even so otherwise 2 months notice is very impractical. Even if he send 2 months ago a notice who knows will you have replied next day or who knows about your domicile address not changing ? All these lines could have been mentioned in Agreement Deed that “parties are required to exchange their physical address end of each year and or as and when they change…..etc.” Many will laugh on these suggestion but see the problem has come na !


4. Every mother having primary custody that also of a female child is protective and does not wish even otherwise to part away the company of the female child irrespective if ex husband has a female at home or otherwise. Tomorrow if post MCD if he would have married you again would have step mother problem.. It starts during litigation and continues post closure of all litigation by some or the other excuse. My que. here is why no mother is told or is forthcoming to think of her child for number of years ahead and then opt in for best long term interest settlement. You giving away your maint. rights is nothing pure nothing in the eyes of Law. You can always ask your maint. rights even after MCD. HC and even SC have granted maint. post MCD even after 6 years / 18 years lapse for a simple reason that civil maint. you ladies can forgo but criminal maint. you can never because the closed or fresh filed suit is against STATE not your husband provided that you have remained un-married all these years! Second you cannot enter into contract on behalf of your child to forgo her / his maint. as this is null and void in the eyes of Law be it so a 20 L investment is pledged by non custodial parent. Something say a fig. starting 1 K to 5 K per month with every two years 15% increase should have been opted for in addition to 20 L long term SIP (systematic investment plan) and no father feels uncomfortable for such small amount especially in cases where 20 L as SIP is pledged which is again not a small amount for majority of middle class father the perception here is drawn towards middle class father not riksha class is what I actually mean.


5. Now covering the years report of 20 L he can always say that he sent but it came back as address was not right however here it is and he will produce the same before the court by tendering unconditional and unintended apology. Cout will accept it! Now what defense you have ! Flip this he can always take a plea that 20 L is maturity showcause which is what I thought hence I did not send the yearly report and off course it is unintentional and unintended. So see the double end sword you people created as monster during your adult MCD !


6. Before you are overwhelmed let me say about your last para by an live illustration; in Chetana Kuble Vs. Kumar Jagirdar famous case of SC / Karnataka HC and now trial Court case Chetana is wife of cricketer Anil Kumble and they have from their first marriage a daughter. The daughters primary custody was not given by SC to Kumar Jagirdar stating you don’t have a female at home ! However extended vacation custody was always granted all these years to Kumar. Now Kumar gets married to a dentist dr. and comes to Court saying now I have a female at home, so grant me custody . Trial court says oh it is Ok but let us respect SC order. Now you see what was SC order that he does not have a female but when he brings legally a female at home so what was the problem before Court not to grant custody this time? ???? So you see if this case is referred into your briefs then you knew you both have a female child, probably the reason for divorce may have been one of his drink habbits other than other grounds whatever, but he is a father not a rapist nor a criminal. Court have granted physical overnight custodies of a female child to drinking habit fathers as well as criminal fathers who are undergoing trial. Flip these illusration and now let me take you to another famous case that of Dr. Satish Mehra Vs. Dr. Arati Mehara case of SC / D HC where Arati alleged s*xual misconduct of Satish before NY Police which was unestablshed and meanwhile they came to India and again she tried the same here in Indian soils that Dr. Satish drinks and inserts bottles into private parts of female child. I mean it was a schoking case in Indian custody history and first Delhi HC and later SC did not took all these allegations of mother lightly and reprimed her of false allegations but retained visitation (overnight) rights of the Dr. Satish at the end inspite of some of the most gruesome allegations put by mother against the father.


So bottom line what I mean to say from such long reply is that think carefully what and why and when you want your child to have company of her own flesh and blood or become a fatherless child on allegations of drinking and no female in his home scenarios. The solution could be to have supervised extended vacation custody as a middle path wherein you can go and stay at a budget motel in Cochin and father have the company of child and each evening the child may visit / talk to you and whatever report you want you can have of the child and immediate corrective messures could  be taken in unfortuante scenarios. Your physical presence in same city is non-intrusive as well as it gives an impression that you both have come half way otherwise the child will grow up to marriageable age and both of you will still keep post MCD contesting one or the other Writs (mind it it is a not a criminal case but he is enforcing MCD rights via a writ Petition under Art. 226 and n no way it is harassment). However these are my core views and not a judgment of things that may happen in your briefs.


Sum total I wish you as a mother all the very best. Something which could not have been done 5 years back as a reasonable parent you can always undo keeping both a natural father’s rights intact (reminds me of another SC Pmt. Lok Adalat settled custody case which was opened after 6 years by father and he got extended visitation rights too under contempt of court act so your scenarios are prety similar to lots of referred caes herein) as well as a minor child fatherless ness rights balanced for a very long time and for the same ask for Chamber Counseling by Lordship themself with father and child as child as per Law is old enough to form an independent opinion and a balanced midway path may be adopted by Lordship is my concluding view to your this brief. However read this reply twice before jumping guns at me.