Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Anonycity_101 (Consultant)     24 April 2013

Interim custody

Dear Sir, I (the husband) have filed for the dissolution of marriage under section 13.1.1a of the HMA lived under the same roof till the petition notice was served to her. Within a few days of the notice being served by the court to my wife (the repondent) she disappeared with my child (girl) aged 11 years to her hometown Pune without even informing me.

The schools have opened for the next academic year and despite efforts by me to get the child back so that she can continue to go to school, my wife hasn't done anything - the child is not going to school in Pune either for last 1.5 months. Meanwhile the first hearing on my petition is postponed to end of May as per her lawyer's request. 

Can I seek interim custody of the child in the interest of the child so that she can continue her schooling? what are my chances? Can I approach the court for the same before the next hearing date?

 



Learning

 25 Replies

Adv Archana Deshmukh (Practicing Advocate)     24 April 2013

You can file for interim custody of your child. Give the details of the school schedule of the child and about the loss being caused to her education. The courts are very keen on the point of education and welfare of the child. What are your chances of getting the custody depends upon what defence your wife puts up and how the case is contested and the overall facts and circumstance of the case.

2 Like

Adv k . mahesh (advocate)     24 April 2013

The HIndu Minority  and Guardianship Act, 1956 (32 of 1956) has codified laws of Hindus relating to minority and guardianship. As in the case of uncodified law, it has upheld the superior right of father. It lays down that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first the father and then the mother. Prior right of mother is recognised only for the custody of children below five. In case of illegitimate children, the mother has a better claim than the putative father. The act makes no distinction between the person of the minor and his property and, therefore guardianship implies control over both. The Act directs that in deciding the question of guardianship, courts must take the welfare of child as the paramount consideration.

now you have to prove that you can provide her better prospects and you should show the court that her mother were stays has no proper facilities which you can provide to the child 

1 Like

Anonycity_101 (Consultant)     24 April 2013

Many thanks to the learned advocates Archanaji & K.Maheshji. 

My wife is also trying to file a transfer petition to Pune (where we were married). When I file for interim custody, will that have any bearing on the transfer petition she is going to file with Supreme Court? Will my argument against the transfer be stronger if district court grants me interim custody before her transfer petition? What will be the affect of my interim custody petition on her transfer petition?

Thanks once again - please enlighten me.

Adv k . mahesh (advocate)     24 April 2013

you have not stated from which city your are resideing right now because for transfer petition from one city to another city high court is okay and 

from one state to another state supreme court is jurisdiction

she is filing only for transfer petition and your is interim petition even if she gets transfer petition ordered she again has to come to district court for execution and you petition will be at district court 

Anonycity_101 (Consultant)     24 April 2013

I am residing at Gurgaon and I think they will approach the Supreme Court for this transfer. So you are saying that she will need to come to the Gurgaon district court to attend the hearing of interim custody petition. Is that correct understanding?

Adv Archana Deshmukh (Practicing Advocate)     24 April 2013

Yes, your wife will have to come to the place where the case is pending to attend the hearing of the petition.

1 Like

Anonycity_101 (Consultant)     24 April 2013

Thank you Archanaji.

Adv k . mahesh (advocate)     26 April 2013

there isno need for her to be present if they file for transfer in supreme court 

1 Like

Anonycity_101 (Consultant)     26 April 2013

Maheshji, the transfer petition is for divorce, not interim custody - are you saying even in that case she need not come to Gurgaon? will both the petitions treated together?

Anonycity_101 (Consultant)     29 April 2013

Is there anyway I can prevent transfer petition from being filed - other than of course arguing against it?

Adv k . mahesh (advocate)     29 April 2013

you cannot prevent her right to file the transfer petition but you have to take more careful steps while drafting the counter to prevent transfer of your case

 

Strategy and facts to remember to fight Transfer Petitions
 

  • Normally, Husband or wife can put transfer petition to transfer the petition from the place where it is initiated to the place of convenience.
  • If the source place and the destination place are in the same state then transfer petition has to be put in the high court of the same state.
  • If the source place and the destination place are in the different state then transfer petition has to be put in the Supreme Court.
  • Typical grounds taken by wife in the transfer petitions are below.
    • Having a child
    • Travel is unsafe being a lady
    • Expenses required for travel
    • Threat to life at Husband’s place
    • Husband is very influential in his place
    • Inconvenience to travel long distance
  • Counters for the above grounds.
    • COUNTER OF POINT 1 : One of the parents of the wife can look after the child and another can accompany her. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 27 OF 2005)
       
    • COUNTER OF POINT 2 : Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. Supreme court also accepted this fact recently while disposing the "TP (CIVIL) NOS.117-118 OF 2004" whilepassing the following order.

      "The grounds made out are that the Petitioner is an unemployed lady and totally dependent on her uncle and that she will be hard pressed to defend the Suit at Muzaffar Nagar. It is also claimed that there is a Petition for restitution of conjugal rights and certain other proceedings pending in Delhi. In our view, no substantial ground for transfer has been made out. If the Petitioner wishes that all cases be tried at one place, she may apply for the same and we will transfer the cases pending in Delhi to Muzaffar Nagar. Merely because the Petitioner is a lady does not mean she cannot travel to Muzaffar Nagar. At the highest she can be paid expenses for travel and stay. We, therefore, direct that the Respondent shall pay to the Respondent and a companion travel and stay expenses on every occasion that the Petitioner is required to go to Muzaffar Nagar. The Court at Muzaffar Nagar shall ensure that such payment is made to the Petitioner on every occasion. With thesedirections, the Transfer Petitions are dismissed."

      Just because she is a lady does not mean that she cannot travel a distance of just 8 hours. The respondent wants to bring to the kind attention of the honorable court that in general ladies are misusing the leniency shown by this honorable court in regard to the transfer petition. Supreme court also accepted this fact recently while disposing the "TP (CIVIL) NO.191 OF 2005" while passing the following order.

      "Even otherwise, it must be seen that at one stage this Court was showing leniency to ladies. But since then it has been found that a large number of transfer petitions are filed by women taking advantage of the leniency taken by this Court. On an average at least 10 to 15 transfer petitions are on Board of each Court on each admission day. It is, therefore, clear that leniency of this Court is being misused by the women. This Court is now required to consider each petition on its merit. In this case the ground taken by the wife is that she has a small child and that there is nobody to keep her child. The child, in this case, is six years old and there are grand parents available to look after the child. The Respondent is willing to pay all expenses for traveland stay for the Petitioner and her companion for every visit when the Petitioner is required to attend the Court at Delhi. Thus, the ground that the Petitioner has no source of income is adequately met. Except for stating that her health is not good, no particulars are given. On the ground that she is not able to come to Delhi to attend the Court on a particular date, she can alwaysapply for exemption and her application will undoubtedly be considered on its merit. Hence, no ground for transfer has been made out. Accordingly, we dismiss the Transfer Petition. We, however, direct that the Respondent shall pay all travel and stay expenses of the Petitioner and her companion for each and every occasion when she is required to attend the Court at Delhi".
       
    • COUNTER OF POINT 3 : Ready to pay all expenses but mention that this willbe paid on actual. Husband is willing to pay reasonable expenses to wife whenever she is required to travel for these cases. Some of the precedence where Supreme Court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP(C) No. 24/2005, TP (CIVIL) NO. 27 OF 2005, TP(C) No. 61/2005, TP (Civil) No.66 of 2003, TP (Civil) No.136 of 2003, TP (CIVIL.) NO(s). 212 OF 2006, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 OF 2004, TP NO..416 OF 2004, T.P.(C) No. 489 OF 2004, TP (CIVIL.) NO(s). 561 OF 2004, TP (CIVIL.) NO(s). 191 OF 2005, TP(C) NO.195 OF 2005, TP (CIVIL) NO.243 OF 2005, TP (CIVIL.) NO(s). 245 OF 2005, TP(C) NO.246 OF 2005, TP (CIVIL.) NO(s). 302 OF 2005, TP NO.393 OF 2005, TP (C) NO. 414/2005, TP (CIVIL) NO.459 OF 2005, TP (C) NO. 564 OF 2005, TP (C) NO. 686 OF 2005, TP (CIVIL.) NO(s). 698 OF 2005, TP (CIVIL.) NO(s). 722 OF 2005, TP (CIVIL) NO.725 OF 2005, TP (CIVIL.) NO(s). 741 OF 2005, TP (CIVIL.) NO(s). 743 OF 2005, TP (CIVIL.) NO(s). 746 OF 2005, TP (CIVIL.) NO(s). 759 OF 2005, TP (CIVIL.) NO(s). 769 OF 2005, TP (C) NO. 798 OF 2005),.
       
    • COUNTER OF POINT 4 : You have to mention that you too face a threat at her place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.
       
    • COUNTER OF POINT 5 : You have to mention that wife’s family is also influential in their place. You need to argue that in that case it should be transferred to a neutral place where both husband and wife can fight the legal battle peacefully. There is a judgment on this. Will be provided on request. Please note that in this case you have to give her travel and staying expenses. But this should be a last ditch effort. You should not mention this point of neutral place in the petition. In case your lawyer feel that judge may transfer the petition then only this method should be used.
       
    • COUNTER OF POINT 6 : The distance between place A and B is not so far that it will cause inconvenience to wife. Some of the precedence where this court has taken a similar stand is listed below. (TP (CIVIL) NO.191 OF 2005, TP (CIVIL) NO. 23 OF 2005, TP (C) No. 61/2005, TP (Civil) No.66 of 2003, TP (CIVIL.) NO(s). 142 OF 2005, TP (CIVIL) NOS.117-118 of 2004).
    •  
    •  
    • (https://www.498a.org.in/rsrcs_strtgy_TP.html)
1 Like

Anonycity_101 (Consultant)     29 April 2013

 

Brilliant Maheshji, that's brilliant - in one response you laid out transfer petition related possiblities beautifully. 

Thank you so very much for your insights.

Anonycity_101 (Consultant)     04 May 2013

I filed for divorce under Section 13(1) (1a). Can my wife file for a counter petition? What is a counter petition?

In the hearing, they are going to falsely accuse me of being a drunkard, an irresponsible person and a wife beater (our marriage is 15 year old btw).

I only drink occassionally and definitely not a drunkard, nor any of the other two. How can I defend myself agains these false accusations. I will be grateful and your response will give me great moral strength to fight my case. Thanks in advance.

Adv Archana Deshmukh (Practicing Advocate)     05 May 2013

She will be filing reply to your petition. If she wants to join you, then can file a petition of restitution of conjugal rights as a counter claim along with her reply(written statement) and then you will have to file a WS to it. But if she is going to accuse you as a drunkard or wife beater then, why she would seek RCR?  As far as how to defend about the false accusation is concerned then Mr. ChandraS77, no advocate can give you a straight jacket formula for that, no advocate can reply without going thru the entire case. Bcoz how to defend is a matter of stratagy which a lawyer decides after going thru the pleadings  and considering that it has to decided what evidence you should lead i.e. oral and documentary, what witnesses you shud  examine to prove your case and how to smash the defence of the opponant by the way of cross examination and examination of witnesses. So, let her come up with her defence and then decide how to combat it. There is no point in speculating and imagining things. Also, merely making allegations without any supporting evidence is also of no consequence.

1 Like

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  


Start a New Discussion Unreplied Threads


Popular Discussion


view more »




Post a Suggestion for LCI Team
Post a Legal Query