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Nikitha Mahe (Others)     22 September 2017

Hcp for child who is in us last 3 years

Hi All,

I am posting this query about an false Habaes Corpus. I am the mother of the 4.5 years old son and the son is with me for last 3.5 years and  in USA. Last 2 years "RCR" was  filed by Husband in India but recently he has withdrawn this RCR case and submitted a HCP in high court of Chennai stating that the Child has been missing only for 6 months and in which he had stated that he had been visiting the kid often. But actually, he  has never made an attempt to contact the kid or never shown interest about the kid. Kindly help in responding to this as I cannot come to India with the Kid within this short span and also i am worried this will turn into a child custody in India

1. Can I submit all the proof of Kid staying with me through my family members, Will high court accept the proofs without my presence?

2. Will the Judge still order to bring the Kid in person though the details given in the case is not true?

3. Should I submit my response by hiring a Lawyer or is it enough to hand over the proof  to the public prosecutor?

Awaiting some help and ideas on this


 7 Replies

Vijay Raj Mahajan (Advocate)     22 September 2017

Firstly hire some honest lawyer who remains faithful to you otherwise local lawyers are in habit of changing sides in no time for extra bit of money especially in place you both belong in India. Secondly all evidence that show and proof that you hold physical custody of the children with you including the citizenship as well domicile status of you and your children with you. Any order of US court granting you complete physical custody of both children, if you can get will be of immense help to you in Indian court.

SHREY DAMBHARE   22 September 2017

I am completly agree with advice of Mr. Vijay Raj Mahajan. However, if you obtain any decree or order from US Court then just ask your lawyer in US that the order by US Court should be in consonance with Section 13 of Civil Procedure Code, 1908. Show him this provision to obtain order in your favour. Section 13 of Civil Procedure Code deals with when forign judgment is accepted in India. 

Siddharth Srivastava (Advocate)     22 September 2017

Engage a competent lawyer who can assist the public prosecutor with all materials. You are the natural guardian of the child. You should file necessary application and counter with all proofs refutting the allegations of your husband. If the child is under your custody which is a lawfull custody then the WRIT of Habaeous corpus is not maintainable. Also file case against husband for filing false case in court. Sidharth 9811776422


Kumar Doab (FIN)     22 September 2017

Agreeing with Mr. Vijay Raj Mahajan.


From your post it appears that your spouse is with wrong lawyer.

A lawyer worth his salt will not advise his/her client to approach court on false and flimsy grounds.

Probably your spouse is wasting his monies.



There are many publications at LCI also indicating that unsuspecting querist and clients have been allured and fleeced at online portals.


Avoid the posers and impostors loitering at online portals, with multiple fake ID’s posing as some expert lawyer/consultant (while the entity is nothing but a LIAR) and advertising some unknown firms as Law firms (which are nothing but LIAR’s firms).


The freemongers ( mufaatkhoras’s) loiter and stalk at online portals searching for ;bakra.


Such entities even post query by fake Id’s/names and then post replies from other fake ID’s posing as experts and praise each other endlessly and run a vulgar show of Salutes/flattery to each other (fake ID’s) to impress, allure and fleece unsuspecting querists/readers……………and extract monies and fees in the name of online consultations.


Online discussions are NOT a substitute to in person discussion with a very able counsel as suggested above.


Kumar Doab (FIN)     22 September 2017


Querist/client should ALWAYS inquire in person about very able senior LOCAL counsel/law firm of unshakable repute and integrity specializing in concerned filed of law e.g. Family matters/Civil matters/Criminal matters and having successful track record.

Help of elders of the family, competent and experienced well wishers, PIP’s, DBA officials, women groups/Men’s groups, community leaders, welfare societies, employee’s unions etc etc can be taken………..


The onus to prove the contentions and averments falls on the spouse that is contemplating to approach court on false/flimsy grounds.


The other spouse that has irrefutable evidence can sit pretty and tight and share it with able counsel.

Either spouse can approach court on issues that are pending between both spouses.

Kumar Doab (FIN)     22 September 2017

It is matter of choice between both spouses to settle amicably or thru court of law.

In case of child custody Indian Courts consider welfare of child and can ask the child with whom child would like to stay.

Without any hesitation take up the matter with your own counsels and prepare in advance to meet the legal challenge if any, thrown at you. 

1 Like

Adv Radhika Mehta (Advocate)     22 September 2017

Firstly, i would advise you not to worry as several Courts have lately started  taking the view that the custody of a child with the mother cannot be said to be illegal custody. Therefore the provisions of HCP do not apply in such matters.   However, in the meanwhile, do collect proof regarding your son's stay in US as advised hereinabove.  Also it is essential that you appoint a reliable lawyer who can represent you here.  

1 Like

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