Help a crying Mother. Court gave custody to father.

1. There are lapses it seems from the narration by mother and or by a lawyer. I said this because "jurisdiction" in child custody case is totally different ball than "jurisdiction" as perceived in other civil / criminal case. Having said so, tell us where the mother filed the case for custody first of all; was it in her place or at Delhi where the child was removed from ordinarily residence of?


2. The second lapse (probably) I noticed from yoru briefs is that of not putting in a Interim Application for custody / visitation ie. U/s 12 GWA if the custody case was filed using GWA The Act. But, it looks from your post that under a HMA Suit the mother filed a S. 26 HMA case for final custody of child but I also see missing a S. 151 CPC Application for Visitation and or a specific Prayer under S/ 26 HMA for interim Visitation till final Order pops out etc. ? If these observations are correct then mind you S. 26 HMA is not that powerful a section unlike S. 25 GWA R/w S. 10, S. 12 and S. 17 all GWA The Act for custody / visitation of 'child' and or 'ward' etc.!.

3. The third observation is based on interpretation in your brief wherein you say and I quote "father well of so custody granted to him". Actually there are binding precedents from Hon'ble Apex Court and even from Hon'ble Delhi HC which has said the other way round ie. father and or mother's income parameters are not at all the sole criteria to decide the custody grant of; hence I feel unless a Lawyer reads through the entire Order and or the Decree wordings it may become a bit early reply (take) here hence I am not speaking my mind much at this stage.

4. The forth point that caught my attention is the "medical well being of the minor clubbed with father's side family conduct" during the trial. I see the conduct (i.e. environs of child where she is brought up) which your sister side lawyer was supposed to highlight missing.


5. In a child custody award the key lis revolves around S. 17 GWA and if you understand the meaning of each word under S. 17 GWA then the case is probably all yours.


However, if your sister is going for Appeal then may be using O 41 / R 27 CPC new evidences / facts may be adduced before superior Court and with proper reasoning which probably were left out previously may bring the correct facts before Appellate Court for favourable order this time otherwise Hon'ble SC is still there to approach later.


But, since the child seems to be all settled (said it due to lapse of time from her removal and till date) the whole exercise (Appeal) needs a seasoned Child Custody knowledgeable Lawyer fine handlling the Appellate case. Well in a way these are doable (means reversible) and wish your sister and her side of family all the best.


BTW, from all these paras let the “welfare of child” come out as winner which only your two sides of the family are best to project and or judge and or feel content with at the end of the day!

DearAll,
 

Please suggest me what to be done in this case. Any good citation would be really helpful?

I am physically challanged with 100% of disability. My both legs were afftected by polio at my chilhood. I Cannot walk. Working as Teacher (Govt. employee).  I married one lady in 1998. A boy was born in 1999 Divorced in 2004.  The boy's custody forever with mother. But she expired  in 2005.  The boy is living with mother's parental family, with the brother of his mother.  That my son was adopted by him.

I married another lady in 2005 according to Hindu customs and rites. Got a male child on 13-09-2005.  And a female child on 27-08-2007. She converted into Christian religion in 2002 (Took Baptism - I have got her baptism certificate ).  She committed for criminal activities towards me and my father. She punished by the court u/s 323 and 506 of I.P.C. She also beat young aged children where medical treatment was given (prescripttions available).  My wife discontinued 10^th class. I encouraged her to continued studies, joined in B.A. open university. But she failed to continue it.  She developed extra marital relationship with one guy at where we lived.   And she left my society on 14.04.2013 along with female child where a missing complaint was filed. Our male child was staying with me.  After 3 months she came to me along with the female child and stayed for 20 days and went away along with the two children on dt. 25-07-2013. At the time they were studying in private school under my custody.  I called her to come back. But she did not heed. I used to send articles, dress to children. My wife filed maintenance case u/s 125 Cr.P.C. where she is residing. I filed O.P. seeking Restitution of conjugal Rights But she remained absent after counseling made. Ex-parte decree passed in favor me. And the M.C. case was transferred to my place on the ground of my disability. I am paying the children school fee upon the request of the school management (Through phone call) as the mother not paying. The male child is in 10th year studying 4th class. The female child is in 8th year studying 2nd class. The children may like to continue with their mother as they are residing with her now.  The female child told me over the phone that she is afraid of her mother. My wife also wrote me a letter stating that she is working as tailor at her place She joined children in a corporate school. She is residing in her parental house though I called her to come back. She is getting trouble to pay children school fee which are heavy.  Requested me to send school fee. And she also wrote me if I pay school fee she can withdraw the M.C..  I already sent the school fee and continuing.  I wrote two letters with calling her to my conjugal society otherwise send the children to me in view of welfare and future of children.  Which were not replied till now.  Last letter to her by me on dt. 16^th Novemer, 2014.

Me and my father are very much interested towards the children. As they are very attached us.

The male child born in the place where they are residing now.  And the female born at my place. They stayed with me upto July, 2013. 

Now my questions are:-

1.                   I would like to file custody petition.  Where should I file?  Either in my living pass – RCR decreed, The children grew here

2.                   or the place of residence of children right now. – The male child born there and they are residing there from July, 2013 continuously – Studying there.

3.                   What is jurisdiction point to file child custody petition?

4.                   Is there any possibility to execution RCR decree.   And what is the procedure?

5.                   Am I eligible to get child custody?

6.                   Is she eligible to get maintenance after RCR decree passed in favour of me. (Ex-parted)

7.                   What is the time limit to re-open the RCR set a side by her?

8.                   She ready to give divorce.  I am not interested to leave the children with her.  And I think she may change. 

Seeking your valuable opinion on these points.  Kindly reply as soon as possible.

With warm regards,

BABU

+91-9550584717

<babuanapa@gmail.com>

A child cannot speak for itself. 

Let's honour the right of the child to live with both of its parents.

https://www.lawyersclubindia.com/forum/A-child-cannot-speak-for-itself--115462.asp#.VMJI9keUeL0