Most challenging scenario : visitation & child custody
(Querist) 27 March 2023
This query is : Resolved
Dear Family law experts: The facts of the divorce case as follows
1. Petitioner (Wife) married Respondent (husband) in 2012 after 3 years of love phase in distance relationship since both were working at different city. during love phase petitioner stated her "ex" story. the "ex" abandoned her and resurfaced before the day of marriage. during marriage petitioner was started developing another relationship in her office.
2. Respondent later found all these and questioned, to counter this, petitioner was continuously humiliating and pointing out on respondent's inability to earn more since respondent is poor than petitioner. unable to tolerate the continuous humiliation, respondent searched job and moved abroad, and started earning and settling debts and sending money to respondent.
3. Now petitioner twisted the story and to hide her "ex" and illicit relationship findings and damages, was playing victim card as respondent abandoned and left abroad in the name of earning. petitioner got conceived started living in her parental house at the same time respondent moved abroad for the job. in spite of requests from respondent, petitioner denied baby shower and other formalities and twisted the story to parents and neighbors as respondent is not having enough money to conduct all these ceremonies. after child born, petitioner was not allowing to share the pictures or video call to see the child. also denied to quit job and move aboard with respondent. respondent was traveling to india once in a 3 months and meeting the child.
4. one fine day, petitioner told respondent to not to enter her house and not to meet kid for any reason. when asked about this decision to her parents, they were not bothered about this and advised respondent to listen what petitioner says. petitioner was proposing for a mutual divorce, where it was stated the respondent should not meet kid. respondent was not agreeing to this particular point, if visitation provided, was ready to give mutual consent. while respondent was on abroad, petitioner filed divorce on the ground of "cruelty" in Dec 2019!! stating not spending time with her / child, not visiting her / child and not providing financial support and moral support. however the respondent was proving huge money to her through NEFT account to account transaction, bought valuable jewellery, gifts, sedan car, took to vacation trips etc. while questioned about the contested divorce decision, petitioner said that she want to keep respondent away from her and kid. Respondent filed RCR as counter and case still going on.
5. on the main case, respondent made IA for child visitation. the judge took conducted full trial on IA and finally convinced and awarded decree in favor of respondent in Oct-2021. 1 hour per day video call with child and when coming to india, half of the vacation days can be spent with kid. the kid (son) is now 8 years
6. Petitioner went on high court appeal CRP & CMP on this decree and not attached document set. hence from the day of filing high court, the case was not listed ever for the past 2 years.
7. Meanwhile the divorce case is still ongoing in the family court. respondent nowhere made any kind of cruelty or harm. petitioner seems to be narcissistic mother.
Expert suggestion needed in the following scenario:
1. how to execute the visitation rights as per decree passed? (filing EP petition will work?)
2. Or Mention the CRP/CMP at high court and bring the case alive, contest, argue on the case? (whether respondent has chance to win?)
3. Whether respondent has ground to go for child custody?
4. If yes for point #3, Filing as IA under HMA section 26 family court on the same divorce case will be suitable?
5. Or filing fresh custody petition at high court ? (is there is a suitable section based on the facts?)
6. what are the chances that respondent to get infructuous order in all the above scenario?
7. What is the chances of respondent getting child custody considering "narcissistic" behavior of petitioner and wealthier than petitioner and can able to give best education and facility for the kid
8. Any relevant case laws to support this respondent's scenario or anyone has petition format?
T. Kalaiselvan, Advocate
(Expert) 28 March 2023
The respondent has already got the interim order to visit the child, if he is not able to enforce or execute the orders in the manner known to law, then there is no point in getting this order in his favor.
As there is no stay order by high court restraining the respondent to execute the interim order, he can very well make an attempt to visit the child on the basis of court order, if she is refusing to obey the trial court order, you can file a contempt petition against her and also in that you can get an interim relief if your approach the court properly with the help of your able lawyer.
You can contact your lawyer for the suitable judgments which may be appropriate to your circumstances.
(Expert) 28 March 2023
Please post concise facts.