Wp - refiling
M K
(Querist) 11 July 2015
This query is : Resolved
Dear Sir, i need your expert opinion on my issue.
my first marriage ended after 4 yrs after my 1st wife deserted my house and my child age 2 yrs then and took khula from me on the grounds that her demand for a separate house on her name was not fulfilled, she also agreed to let the custody of my child remain with me and my mother, the child was 3 yrs 8 mths at the time of khula.
I married again to a divorcee, my 2nd wife went away after 2 mths into marriage and registered against me and my mother. my mother was taken to the police station and on the way she was made to collect my child form the school. the child was 4 yrs 9 mths then. they were made to sit ion the police station without any reason disclosed to them. my 1st ex wife was also present at the police station. after my relatives arrived, my mother sent my child away to our neighbor. a little later the child was kidnapped from the house by some men and 2 burkha cladded women.
i immediately surrendered before the police and tried to register an FIR whic was refused. my mother was arrested the next day and both of us were released by the magistrate on the same day. we again tried to register our complaint without success. we the approached the HC. the police file a reply stating that at the time of my arrest the mother of the child came to the police station and the child on seeing her started crying and went on his own along with her. we had to withdraw the WP as our neighbor, our only witness refused to appear / give statement under threatened. the HC directed us to approach the appropriate authority for the custody of the child.
my 1nd wife took my child away to undisclosed location in the next 4 yrs. lawyer's i approached maintained that i would need to give a confirm address else summon could not be serve and the case will be pending. then one lawyer filed search warrant application against the parents of my 1st ex wife, to ascertain if the mother of my child can be served thru her parents address. my ex wife appeared along with my child and the application was rejected.
we then immediately filed a custody, wherein the there was no appearance from the opponents in the next 18 mths. A production notice was issued to the police. the police filed a reply with the statement of the maternal family of the opponent saying they do not know where she is.
i then approached the HC with a WP for Habeas Corpus, thereafter the mother of my child appeared with my child and submitted an undertaking that she will appear before the family court and give access to me. the WP was disposed with direction to the opponent and family court to dispose the case in next 6 mths. the case has currently passed the argument stage and is pending order in the next 10 days.
During the proceeding in the family court, the opponent ie the mother of my child submitted a written statement and exam chief and her statement was recorded in the cross. she maintained that the custody of the child was given to her by the police when i and my mother were in the custody of the police. she also mentioned that she was called by my 2nd wife to collect the child from the police station.
my question is
1. what are the odd that i will get the custody of my child who is 9 yrs now. will the court take note of her action in taking away the child from my custody?
2. can i file a WP highlighting the discrepancy in the statement record by the police and the statement recorded in the family court, showing that there is foul play, where the police are involved and a crime of kidnapping was covered by them. can i ask for CBI inquiry into the matter and action against those found guilty.
pls advice.
regards,
M K
dr g balakrishnan
(Expert) 12 July 2015
1.Police failed in its duty to protect the child when you and yr mother were to be taken to custody?
there is a clear dereliction of duty of police when one apply art 51A of the constitution of india?
question arises police mandatory responsibility is law and order that it failed.
that dereliction made you suffer,on what basis allowed your 1st wife t take the child when the child is is custody is the valid question. you can move against home ministry under vicarious liability the state has to pay you liquidated damages for mental suffering police caused on you.
2. your notice to home ministry is the written notice or in the alternative move liquidated damages under sec 500 of the act.
it is not a question of liability but it is a question of a safety of a child in question that predominates here.
M K
(Querist) 13 July 2015
Thank you.
but how do i prove my case to proceed further as per your advice. And not only the police, i want all those involved in the kidnapping of my child to be booked under the law.
Secondly i also want to prove that custody of my child with his mother is unlawful and amounts to unlawful restraints / confinement, as she has got the child through unlawful means of kidnapping wherein the child was exposed to the danger of coming in the way of harm.
T. Kalaiselvan, Advocate
(Expert) 16 July 2015
How do you prove your version depends on how you have planned to handle the issues. Sit and discuss the strategies with your advocate, keep filing one or the other application before filing a main petition seeking action against all those responsible for all these havocs, make the other party to budge too the pressures put by you. Fight tooth and nail till you achieve your goal.
