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Ex husband fled to us with my daughter

Page no : 4

MRRpersonality (Knows very little about Indian laws)     21 June 2012

@abc:  it is best if you walk into an advocate's office with all your papers and discuss with him/her.  The issue here is that you have consented your daughter to your husband's custody during the divorce proceedings.   Your husband has legally taken the child with him to pursue his career.  Your daughter did not seem to have made any witness/affidavit in the court saying that she wants to be with you or she wants to visit you.  Those statements seem to have been made only to you, and based on those statements you moved the court for the interim custody.   There does not seem to be any contempt of court here, as he has not been served those orders.  

 

You will only get correct answer, only after carefully reading various court orders with exact dates of the events.  

 

You can file Habeas Corpus if there is an element of removal of the child illegally.  Please note that the "Ordinary residence" of the child is US now with her father.  

 

Someone reading all the court orders, will be able to determine if Habeas Corpus is appropriate or if you need to move the family/session's court for modification of the original custody orders.  

 

Since you also mentioned that you did not want the custody of the child in view of the welfare of the child.  It looks like you only want some visitation rights or keep some telephonic contact with her.   Is this something you can negotiate with your ex-husband via mediation ?    You can save all the advocates money and with that money you can travel to US to visit you daughter instead.   As a reciprocal agreement, he might bring her here once in a while, if you are not too offensive to him.  

 

You should have added sufficient clauses in the divorce settlement that he would inform you when he changes his place or moves the child out of the currently known location.   Please read the Supreme court judgement regarding a similar case :

 

https://www.lawyersclubindia.com/forum/SC-judgement-on-Visitation-rights-24654.asp

 

Absence of terms and conditions in the divorce decree does not disentitle you to file a petition under section 26 to modify your existing custody orders.

 

The above thread https://www.lawyersclubindia.com/forum/SC-judgement-on-Visitation-rights-24654.asp should educate you sufficiently as to what could still be done.

N.K.Assumi (Advocate)     21 June 2012

"ordinary residence'arise when the child is removed and not where the child reside after abduction:

MRRpersonality (Knows very little about Indian laws)     21 June 2012

@assumi:  The father has sole custody of the child when the child moved with him.  There is no concept of abduction in India.  As per US,  he has sole custody court orders.

N.K.Assumi (Advocate)     22 June 2012

 

She said: Custody of my child went to my husband. But my child was not happy and I filed for the custody of the child in family court and I got interim custody. When I went to pick my daughter I was told that my husband fled to US with my daughter who is an US citizen. ‘Abduction and emotional abuse of the child by forcing her to live away from her mother” Now, the child a US Citizen was removed from the jurisdiction of Indian Family court pending interim custody order of Indian Court. She may be US citizen and there might be foreign judgment or decree but that does not mean that Indian Courts are shut out an independent consideration from the view of welfare of the child living in alien residence. As observed by Supreme Court  Justice T.S.Thakur and V.S.Sirpurkar: Objectivity and not abject surrender  is the Mantra in such case. 

MRRpersonality (Knows very little about Indian laws)     22 June 2012

@assumi:  She had issues communicating her case clearly.  She has provided the information in bits and pieces. She should come out and summarize properly.  From her narrated case so far in different pieces :

 

1. It was a consented divorce and she handed over the custody of the child to the father.   Father has sole custody orders.

2. She spoke to her daughter at some time, and the daughter expressed her desire to continue communication with the mother.  

3. The mother applied for interim custody (vacation time) from May 21-31 and she was granted interim custody on the date May 10th.

4. The father along with the daughter relocated to USA before May 10th.  The court orders were not served on him. 

She went and gave a copy of the court orders to her parents when she went to pick up the child on May 21st.  It can not be claimed that the court orders were served on him on the basis of the fact that his parents were given a copy of the notice.  Also, he and his daughter already relocated to USA and the child's normal place of residence has changed. 

 

There is no abduction law in India.  US has abduction laws.  The parent would be asked to provide either the consent of the other spouse, or the court orders to enter into the country with a single parent.  He has successfully relocated using his sole custody orders.  

 

Now she has an option to get her court orders served to him (late because the custody dates are past).  She has to file custody petition and get the orders served to him via Indian embassy.   After waiting for his response or no response, she can complain to the Regional Passport Office about the pending summons against him.  There may be a good chance of Habeas Corpus if there were proofs that he has willingly dishonored the court orders.  Not sure if the interim custody petition was contested or did he send his representative ?   Somebody looking at the complete details will be able to advise.  

 

As such there is no abduction or abuse as claimed by the mother.  

N.K.Assumi (Advocate)     22 June 2012

Thanks all of you for the lively discussion on the subjects. I have learnt a loat from all the contributors.All the best to the querist.

Fighting for a cause (Defending court cases )     24 June 2012

 

Hi Tajobsindia, your guidance and help to abc is very much appreciated. You suggested 4-5 cases to the lady to help her in keeping her ex-husband grounded for at least 10-15 years. 

 

In my case the lady is planning to fly away to an EU country with my seven year child. It would be very nice if you could share some gyan on how to keep the lady grounded at least for 4-5 years with the help of some court cases. As you suggested that offence is the best defense, is there something for me to take care off. 

 

My case status:- 

 

1) 125crpc filed by her running from 14 months, on the last date she requested the court to grant her interim maintenance till the pendency of the case.

  

2) Custody case under GWA filed by me since Nov 2011 and not much progress in this case except that when the case was going to be decided ex party, she came with her WS and requested to cancel the ex party order. 

 

3) Can I approach the passport office and request them to see whether the passport of my child has been made or not, and if it is made can I request them to cancel it. 

 

4) One more request. I saw a judgment on LCI on a DV case. During the case the lady refused to join her husband stating that she has threat to her life from her husband. Later on she expressed her desire to join her husband but than the honorable judge refused to comply stating that now you wish to join your husband which shows that life threat perception was a lie. I need this judgment, can you please help me in finding this or a similar one. Don’t remember whether this was a High court/Apex court Judgment. 

 

 thanks and regards.

Fighting for a cause (Defending court cases )     24 June 2012

Hi Tajobsindia, your guidance and help to abc is very much appreciated. You suggested 4-5 cases to the lady to help her in keeping her ex-husband grounded for at least 10-15 years. 

 

In my case the lady is planning to fly away to an EU country with my seven year child. It would be very nice if you could share some gyan on how to keep the lady grounded at least for 4-5 years with the help of some court cases. As you suggested that offence is the best defense, is there something for me to take care off. 

 

My case status:- 

 

1) 125crpc filed by her running from 14 months, on the last date she requested the court to grant her interim maintenance till the pendency of the case.

  

2) Custody case under GWA filed by me since Nov 2011 and not much progress in this case except that when the case was going to be decided ex party, she came with her WS and requested to cancel the ex party order. 

 

3) Can I approach the passport office and request them to see whether the passport of my child has been made or not, and if it is made can I request them to cancel it. 

 

4) One more request. I saw a judgment on LCI on a DV case. During the case the lady refused to join her husband stating that she has threat to her life from her husband. Later on she expressed her desire to join her husband but than the honorable judge refused to comply stating that now you wish to join your husband which shows that life threat perception was a lie. I need this judgment, can you please help me in finding this or a similar one. Don’t remember whether this was a High court/Apex court Judgment. 

 

 thanks and regards.

Fighting for a cause (Defending court cases )     24 June 2012

Hi Tajobsindia, your guidance and help to abc is very much appreciated. You suggested 4-5 cases to the lady to help her in keeping her ex-husband grounded for at least 10-15 years. 

 

In my case the lady is planning to fly away to an EU country with my seven year child. It would be very nice if you could share some gyan on how to keep the lady grounded at least for 4-5 years with the help of some court cases. As you suggested that offence is the best defense, is there something for me to take care off. 

 

My case status:- 

 

125crpc filed by her running from 14 months, on the last date she requested the court to grant her interim maintenance till the pendency of the case.

  

Custody case under GWA filed by me since Nov 2011 and not much progress in this case except that when the case was going to be decided ex party, she came with her WS and requested to cancel the ex party order. 

 

Can I approach the passport office and request them to see whether the passport of my child has been made or not, and if it is made can I request them to cancel it. 

 

One more request. I saw a judgment on LCI on a DV case. During the case the lady refused to join her husband stating that she has threat to her life from her husband. Later on she expressed her desire to join her husband but than the honorable judge refused to comply stating that now you wish to join your husband which shows that life threat perception was a lie. I need this judgment, can you please help me in finding this or a similar one. Don’t remember whether this was a High court/Apex court Judgment. 

 

 thanks and regards.

Ramesh Potedar (Advocate)     24 June 2012

Instead of wasting your time here go and initiate the process by engaging a lawyer before it is too late. It is never easy to enforce a decree outside the country. The more you delay bringing him to book, the more are the chances of him finding ways and means to evade the jurisdiction of Indian courts

abc (manager)     06 July 2012

Hi everyone,

Thanks a lot for your valuable inputs.. I have engaged a lawyer and  getting the necessary documentation done for the Habaeus Corpus and Comtempt of court.

I have one question about Habeaus corpus. I know it is a "writ" . So what happens when I file the writ of  Habeaus Corpus? Will the court issue summons to my ex husband? I mean after I file the writ, what is the next step, what is the process? Can someone please walk me through that?

 

Thanks a lot

Adv. Chandrasekhar (Advocate)     06 July 2012

In the writ petition  you will also add the head of the police department also a party as you are seeking relief through him.  The writ jurisdiction is extraordinary jurisdiction, which is available only writ courts. They can give any appropriate direction / order to protect the fundamental or statutory right of the petitioner violated by the respondents.  In writ jurisdiction generally, the violator will be the State or State Instrumentality and not any individual.  In rare cases like you, the court will exercise ists jurisdiction to pass appropriate writ to produce your daughter before the court from the custody of the husband living in U.S. For exercising its writ, it may direct the police to take all possible steps including to contact their counterparts in US (and if necessary appropriate legal authorities in US to deliver the child to India).  It can mould your petition or your prayer to meet the ends of justice.  As extraordinary power can be derived by the courts (except self created fetters), it is called extraordinary writ jurisdiction.  The sky is the limit for the courts in writ jurisdiction.

The procedure goes like this.  Before filing the petition, you serve advance copy on all respondents / their standing counsels including police department, embassies, consulates etc.  The court will take the petition on the next day itself after filing the petition.  The standing counsels representing various state authorities present in the court.  The court, if satisfies with your contentions, give appropriate directions to the respondents.

Wish you best of luck.    

Adv. Chandrasekhar (Advocate)     06 July 2012

In the writ petition  you will also add the head of the police department also a party as you are seeking relief through him.  The writ jurisdiction is extraordinary jurisdiction, which is available only writ courts. They can give any appropriate direction / order to protect the fundamental or statutory right of the petitioner violated by the respondents.  In writ jurisdiction generally, the violator will be the State or State Instrumentality and not any individual.  In rare cases like you, the court will exercise ists jurisdiction to pass appropriate writ to produce your daughter before the court from the custody of the husband living in U.S. For exercising its writ, it may direct the police to take all possible steps including to contact their counterparts in US (and if necessary appropriate legal authorities in US to deliver the child to India).  It can mould your petition or your prayer to meet the ends of justice.  As extraordinary power can be derived by the courts (except self created fetters), it is called extraordinary writ jurisdiction.  The sky is the limit for the courts in writ jurisdiction.

The procedure goes like this.  Before filing the petition, you serve advance copy on all respondents / their standing counsels including police department, embassies, consulates etc.  The court will take the petition on the next day itself after filing the petition.  The standing counsels representing various state authorities present in the court.  The court, if satisfies with your contentions, give appropriate directions to the respondents.

Wish you best of luck.    

abc (manager)     06 July 2012

Hi Advocate Chandu,

Thanks a lot for your detailed reply.

 

I have one question though.... How do I serve advance copy to  respondants (my ex husband and my daughter)?

Also how do I serve advence copy to standing counsels?  I mean where do I find standing counsels?

Please advice.

 

Thanks

 

Adv. Chandrasekhar (Advocate)     06 July 2012

The list of standing counsel will be available with the registry (filing office) of the High Court.  Some of the respondents, such as consulate may not have standing counsels.  similarly, husband will not have standing counsel.  For them, you simply send the petition copy by speed post and paste the postal receipt on the original writ petition.  After doing this, you file the writ petition.


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