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shrinivasg Advocate. (N)     26 May 2012

Custody of minor daughters.

my cliend has one 9 years and one 14 years old daughter. husband filed case for divorice and custody of daughters. she had replied and made counterclaim for RCR ,DV act .case is not came to hearing for last 2years.hearing may start in June 12. she was staying with him but due to holidays she came to her parents along with daughters and again was with inlaws till 6th may 12. on 7th may she saw her husband with his girlfriend and she went to police and took custody of her daughters and staying with her parents. but her husbad took custody of the daughters by deceiving her and not returning them to her. what course of action she should take, elder daughter is saying tht she wants to live with her grandparents and not with the mother.



Learning

 15 Replies

Ranee....... (NA)     26 May 2012

If he has illicit relation with some other women then would court give him custody of the daughters?I think if she can prove his extra marital affair then he wo'nt get custody.Lets wait till experts reply.

Adv. Chandrasekhar (Advocate)     26 May 2012

your question is not clear.  If she is living with him, where is the necessity to file by her the case of RCR case.  similarly, if she is living with him along with minor children, what is the necessity for husband to file the case of custody of children.  give the full details to get correct legal advice.

Tajobsindia (Senior Partner )     26 May 2012

Chandu sahib


1. Ismey itana punchaney wali ki kya baat hai ji?. This is a straightforward brief before us.
2. These facts first of all demolishes your vehement advise to woman queriest to file DV as its orders comes in 60 days which you say here quite often. Look at our fellow ld. Advocate’s facts – he says the case of DV has not yet come on board even after  2 years.
3. First husband files a divorce and custody case. Counter blast from wife was RCR and DV. Both couple with children are majority of relationship living in a shared household during case filing with grandparents. 6th. May is just pointer to separation date nothing else brother Chandu
4. The husband’s case has weightage over her counter blast RCR even he has been seen with a female in Chandani Chowk. RCR is a infructious case. DV Case since not been heard from 2 years is a record room case now. Parent cannot their own children in SC saying BTW do you have faith even in SC or not is your chamber procrastination stress buster. Custody case of husband will proceed as per best interest read with wishes of children.

PERIOD


@ Urvashi

Even criminals get custody of children so why make a fuss about "illicit relationship". as it been proved yet by wife when case from last 2 years is not even heard in court ha ha !

 

Tajobsindia (Senior Partner )     26 May 2012

Errata;

"Parent cannot their own children”


To be read as “Parent cannot be said to kidnap their own children.”  

BTW, when mother take children to natal home in pretext of going for tying Rakhi to her brother and never return to matrimonial home does it not come under deceiving;)

 

 

Ranee....... (NA)     26 May 2012

what points are taken in view while deciding welfare of a child?

Tajobsindia (Senior Partner )     26 May 2012

Quick one among other favs. of mine pesh kiya jata hai apkey liye bhi....

 

Pramjit Singh Lamba Vs. Smit Prabjot Kaur [2004] INHCD 76 (12 April 2004)
IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT:
CRP No.276/2003

Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.

Hindu Marriage Act 1955 -Custody of the Minor Child

Paramjit Singh Lamba ...Petitioner

through Mr. J.P. Singh, Advocate

Versus

Smt. Prabjot Kaur ...Respondent

through Mr. K. Sultan Singh

with Mr. Manish Kumar, Advocates

CORAM:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VIKRAMAJIT SEN, J.

1. This Revision brings to the surface an important question which universally affects and afflicts all persons belonging to a broken home, viz. the custody of the minor child of the two warring spouses. It cannot be over-emphasised that the paramount consideration in all such situations is the well-being of the child. It is this aspect which must be kept in focus and the individual `rights' of the parents would recede into the shadows. It is but a human frailty for the Judge to be prejudiced by the reproachable and unbecoming conduct of a particular spouse while determining the manner in which the child's time is to be apportioned. It has been noticed that the Guardian Judge does not follow a uniform practice in this regard in that sometimes the parent who does not have the custody of the child is granted a meeting of a duration of one or two hours in a month, that too in the uncomfortable and uncongenial environment of the Court, while in other cases weekly visitation or access for several hours is ordered. It is trite to state, but necessary to reiterate, that it is the welfare of the child which must be kept in the fore, either while granting custody or visitation to the parent who does not have the custody. It must also be highlighted that orders of this genre are inherently interlocutory in nature, subject to modification from time to time. It is not essential that the Court accepts consent terms presented to it by the parents. The Court is also not powerless to cancel or modify an arrangement approved by it earlier, if change in circumstances so compel.


2. The Statute proclaims the father to be the natural guardian of the child but clarifies that till he/she attains the age of five years, his/her custody would ordinarily be granted to the mother. The Legislature merely recognises the universal experience and observation that the mother is better equipped and inclined in bringing-up the children. Homo sapiens are the most advanced and intelligent species but there is some commonality with other animals amongst whom it is ubiquitously the mother which cares for the offspring upto adolescence. The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents. Visitation in Court precincts should be resorted to where there is no other option, or where the conduct of a parent is deviant or unnatural thereby necessitating jural monitoring.


3. In the present case the Father has for various reasons, which I need not discuss threadbare, not had much interaction with his daughter. It has been explained that he was pursuing studies in the United States of America during the infancy of his daughter. Visitation between 3:00 P.M. to 4:00 P.M. on the last Saturday of the month, in the Court precincts, appears to have been granted on 23.3.2001. The present Additional District Judge has taken an adverse view of the fact that the Father did not assail the previous Order in an Appeal or Revision. In my considered view, however, it would be inappropriate to give a critical weightage to this fact. Assuming that a parent was uncaring at a particular stage in the child's life, he/she should not be shut out for all times to come. As already observed a decision should be taken not from the claim of the parent, but from the standpoint of the child concerned, since there can be no argument against the necessity for the child to spend time with both parents. In the present case the fixation of only one hour in a month has led to the consequence of the child refusing to meet her Father, that is, the Petitioner herein. Such an abhorrence towards the Father cannot but be the result of brainwashing by the Mother, which has succeeded in large measure because of the extremely limited access of the Petitioner with his daughter.


4. So far as the interests of the child are concerned it is imperative that a meaningful exposure to both parents should be ordained by the Court. One hour every month is clearly counter-productive for the achievement of this objective, as this case palpably manifests. The Court should endeavour to make a weekly meeting possible and only insist that this should be in the Court precincts where no other alternative is possible. It is only in rare cases that such a location should be prescribed. The duration of the meeting should be fixed so as to enable a healthy interaction between the parent and child, and should not be reduced to a mere legal formality. There is also no reason why a shorter visitation, say for one hour, should also not be ordered on a week day so that there is constant contact between the child and the parent. This may be onerous or awkward for the parent who has custody, but in a dismembered family, it cannot be avoided. The parents will eventually evolve a system and develop a pragmatic and healthy attitude where their lives continue in the smoothest manner possible even in such adverse and unfortunate circumstances.


5. In the impugned Order the Additional District Judge has understandably noted and has been adversely influenced by the fact that the application for a change in the interim arrangement and for custody of the child had been presented by the Father only on the filing of the Petition under Section 13(1) (ia) of the Hindu Marriage Act. This is also a reality, but the bluff of the parent filing such an application can be countered by allowing access/visitation rights to the child which the uninterested parent would eventually not fully avail of. In such a case the parent would run the danger not only of alienating the child forever, but also creating an occasion for modification in the duration of child access.


6. I would allow the present Revision by increasing the access of the Father to one hour every week, in the first instance. Since it is evident that the daughter is presently inimical towards meeting her Father, it is expected of the Respondent that she should create a congenial atmosphere which would obviate the meeting/visitation to be held in the Court of the Matrimonial/ Guardian Judge. If avoidable bickering does not end, the parents would end up wasting the better part of their lives in Court, and this should soon bring them to their senses. Their folly, however, is no justification for not endeavouring to achieve the best for the unfortunate child, who has no role or say in the spousal spat.


7. The place of the weekly meeting is left to the Matrimonial/ Guardian Judge to determine. As has been observed, it is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents. My faith that Counsel for the parties shall both advise and assist in bringing about some sanity in their respective clients will, I turst, not be in vain.


8. The Petition is disposed of with these observations. Parties to appear before the Additional District Judge on 21st April, 2004.

April 12, 2004
(VIKRAMAJIT SEN)
JUDGE

(Guest)

Tajjubhai..

abhi tera skin kaisa hain?;)

 

shrinivasg Advocate. (N)     27 May 2012

husband is claming that hi is not residing in shared house of his parents where wife was staying till 7/5/12.

husbad has kept his daughters with his parents and wandering after that girl. thus in fact the daughters are with their grandparents. they had captured mind of elder daughter to stay there only and engaged her in classes from moring to evening.

shrinivasg Advocate. (N)     27 May 2012

husband is claming that hi is not residing in shared house of his parents where wife was staying till 7/5/12.

husbad has kept his daughters with his parents and wandering after that girl. thus in fact the daughters are with their grandparents. they had captured mind of elder daughter to stay there only and engaged her in classes from moring to evening.

shrinivasg Advocate. (N)     27 May 2012

husband is claming that hi is not residing in shared house of his parents where wife was staying till 7/5/12.

husbad has kept his daughters with his parents and wandering after that girl. thus in fact the daughters are with their grandparents. they had captured mind of elder daughter to stay there only and engaged her in classes from moring to evening.

Adv. Chandrasekhar (Advocate)     27 May 2012

I am sorry, again your querry is giving scope to raise several questions for giving satisfactory reply to your querry.  Please answer these questions, if you please.

1.  When he filed divorce case and on what ground?  At the time of filing the divorce case, whether he was staying with his wife and children or not?  Whether he was staying with his parents? or he, his parents, his wife and children were staying together?

2.  When did he file children custody case?  At that time whether they were staying away from him and if so, whether they were staying with their parental grand parents or wit his wife?

3.  When did she file RCR?  Whether she was staying away from her husband or not at the time of filing the RCR?  Otherwise was she staying with her in-laws, when husband was living away from her with his fiance.

4.  When did she file DV case?  What relief she sought?  Whether she got any relief in that or not?  If the case was filed two years back before the Magistrate, why the matter did not come up for hearing?  You used the word "shared household" in which she was living.  Does it mean that in DV case she was provided share in in-laws' house to stay?

5.  After 7.5.2012, where she is living?

6. Prior to 7.5.2012, whether she was staying with her children in in-laws' house, where as husband was and is living somewhere else?

Please answer these questions, and I try to reply.

shrinivasg Advocate. (N)     27 May 2012

1.  When he filed divorce case and on what ground?  At the time of filing the divorce case, whether he was staying with his wife and children or not?  Whether he was staying with his parents? or he, his parents, his wife and children were staying together?

Ans. June 2010 on the ground of cruelty,desertion.,staying with children and wife and parents in parents house which is built up on anchesteral plot. yes staying together.

2.  When did he file children custody case?  At that time whether they were staying away from him and if so, whether they were staying with their parental grand parents or wit his wife?

In the same case of divorce in June,2010 he demanded divorces and custody of daughters.he,wife children and his parents were staying together.

3.  When did she file RCR?  Whether she was staying away from her husband or not at the time of filing the RCR?  Otherwise was she staying with her in-laws, when husband was living away from her with his fiance.

in August 2011.she was staying in inlaws house along with daughters,and husband.

4.  When did she file DV case?  What relief she sought?  Whether she got any relief in that or not?  If the case was filed two years back before the Magistrate, why the matter did not come up for hearing?  You used the word "shared household" in which she was living.  Does it mean that in DV case she was provided share in in-laws' house to stay?

In august 10,  residence order, mantenance,judge leave,transfer etc. .shared house means with her husband and daughters in inlaws house from the date of marriage in 1997.

5.  After 7.5.2012, where she is living?

with parents.

6. Prior to 7.5.2012, whether she was staying with her children in in-laws' house, where as husband was and is living somewhere else?

yes staying with her children in inlaws house, living somewhere else.(rather pretending like that, as in one nce filed by her he gave address of parents so it shows he is staying with parents. IN fact he is comin g to his parents in the day and stays with friends,relatives in the night to show that he is not staying with parents.

Please answer these questions, and I try to reply.

Adv. Chandrasekhar (Advocate)     28 May 2012

She has to contest the divorce case filed by the husband informing the true facts that even though the husband is living with the joint family, he is misleading the court by showing his address different from where he actually residing. In the domestic violence case, she can ask for shared household.  Regarding custody, two facts will be determinent - the welfare of the child and child's preference to whom it wants to live, if the child is in a position to clearly express her choice, 

Adv. Chandrasekhar (Advocate)     28 May 2012

She has to contest the divorce case filed by the husband informing the true facts that even though the husband is living with the joint family, he is misleading the court by showing his address different from where he actually residing. In the domestic violence case, she can ask for shared household.  Regarding custody, two facts will be determinent - the welfare of the child and child's preference to whom it wants to live, if the child is in a position to clearly express her choice, 


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