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ashutosh srivastava (advocate/ consultant)     01 February 2010

interim relief to meet child during pendency of application

 father applied for custody of child the child is living with his meternal grandparents. mother committed suicide being harrassed by father. father is facing trail under sec 306 IPC and also under sec 498 A. during pendency of the case for custody he requested court to order his father inlaw to produce child before court.

can the court refuse father to meet the child untill the case is finally disposed off on the ground that there is allegation that the wife commited suicide on abtement by him? if so any case law in this regard?



Learning

 13 Replies

Swami Sadashiva Brahmendra Sar (Nil)     01 February 2010

A Court trying u/s 306/498A IPC has nothing to do with custody of child.

For custody of child the accused has to move application before the family court.

ashutosh srivastava (advocate/ consultant)     01 February 2010

 Exactly! i am talking about the proceedings before the family court and not the criminal court

regards

Suchitra. S (Advocate)     01 February 2010

I think both the things, having to fae a case under 498A and asking for custody of child are different issues. Father has the right to ask for the custody of the child in the family court and that has nothing to do with his case pending before the court.

Adv Archana Deshmukh (Practicing Advocate)     01 February 2010

The father in law may oppose the application, but the court will not refuse the father to meet the child.

1 Like

ashutosh srivastava (advocate/ consultant)     01 February 2010

 Dear suchtira

You are right that case under 498 & for custody of child are two different things. but my question is that whether a father who is alleged to have abated suicide of his wife is leads to a conclusion that there is likely prejudice to the child's all round development, its psyche being affected and deleteriously influenced, if such a father is permitted periodical access to the child?

Suchitra. S (Advocate)     02 February 2010

Sir, I said, he has every right to ask for custody of child. It is for the court to decide about the issue to give the coustody or not. You have to prove before the court that he is a psyche, and all those things ,to the satisfaction of the court. Then, court may reject custody to him.  If you fail to do so, he have every chance of custody of the child.

1 Like

ashutosh srivastava (advocate/ consultant)     02 February 2010

 Dear Suchitra,

I am talking about access to child during the pendency of petition for custody of child and not about petition for custody of child. its an interim application being filed by the father to meet the child during petition for custody.

ashutosh srivastava (advocate/ consultant)     02 February 2010

  Dear Archana,

you are right that generally the father is allowed to meet the child during the application for custody. but while searching case law to oppose the application of the father i came accross a judgement of Bombay HC AIR 1993 232 pls if you can go through para 20 of this judgement in which the court is of the view that a father who flouts the orders of the court is not entitled to access of child ... i think my case is more serious as in the case i am dealing with the father is alleged to have abated suicide of wife and therefore he must not be allowed to meet the child.... what you think?

regards 

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     02 February 2010

 

 

Dear Ashutosh,

As you already know that as per law, the biologilcal parents have more right than any other person.  Therefore court can even allow the petition. but you have only one way to defend the main and interim application. That aggression of father is very bad and not in the interest of child welfare, otherwise no option.

Good luck

Suchitra. S (Advocate)     02 February 2010

Yes. I concur with Kamal Grover ji. I am of the opinion that father has every right to meet his child during the pendency and also for the custody.

ashutosh srivastava (advocate/ consultant)     02 February 2010

  Dear Mr. Grover,

Thank you very much for your interest in the discussion . 

it is well settled law that while dealing with the application for custody of child paramount consideration must be the welfare of the child and all other things such as natural guardians etc are secondary No doubt natural guardians have preferential right as compared to any other person claiming guardianship.

i have already filed objections on the ground of bad aggression of father and also on the ground of his inhuman behavior. i have also filed certain case laws in support also...

i too belive that there are more chances that the interim application of the father will be allowed by the court but still i am sure that the custody of the child to father will be denied by the court..

this forum i think is a very good platform for sharing the knowledge and experience among us.

regards   


(Guest)

My limited cents;

1. Kindly see media report of Delhi's Trial Courts largese reproduced below (Sir 'Im aware your case is on totally different footing wherein S. 306 IPC as a gender biased IPC section r/w 498a IPC is applied however without prejudice... I quote the reporting here);

Man facing criminal cases gets daughter’s custody
https://timesofindia.indiatimes.com/city/delhi/Man-facing-criminal-cases-gets-daughters-custody/articleshow/5514940.cms
Smriti Singh | TNN

New Delhi: Is a man accused of ‘‘attempt to murder’’ fit to raise a child? Well, a trial court seems to think so. Taking an unconventional stand while awarding the custody of a six-and-a-halfyear-old child to her father, who has three criminal cases pending against him, a trial court affirmed its point of ‘‘not to judge a book by its cover’’. 

Holding that a father can only be ‘‘deprived’’ from the custody of the child if the reasons are ‘‘compelling’’, the guardian judge at Tis Hazari recently rejected the plea of the child’s mother seeking custody on the grounds that her estranged husband was a criminal and was not fit to take care of their child. 

‘‘Two criminal cases are recently registered against the accused. It cannot be said that he is a habitual offender and his association with the child would be adverse to her interests. It would not be conducive to her welfare if is she is removed from her familiar surroundings,’’ the guardian judge said. 

Ahana (name changed) had been staying with her father for the past two years when her mother left her marital home. Her mother moved the court seeking her custody on the grounds that criminal cases were pending against her estranged husband, including that of attempt to murder, which has a maximum punishment of life term. In her petition, she further stated that her husband was ‘‘absconding (from) the process of law and there was no one to take care of her daughter’’. 

Ahana’s father, however, opposed the plea saying that he was taking appropriate legal steps for seeking bail in the cases filed against him and he was taking care of his daughter’s ‘‘moral, educational, medical and psychological needs’’. Not satisfied with the arguments, the court called Ahana for a chamber hearing where she expressed her wish to stay with her father. 

After going through the girl’s educational record and personal interaction, the court said, ‘‘She (Ahana) preferred to stay with her father. Though she is in tender years but she is intelligent enough to form an opinion with regards to her preferences. The court must pay due regard to her preferences in arriving at a just decision with respect to her custody.’’ 

Lending a compassionate view to the bond shared between the father and daughter, the court said that it would be right for the child’s well-being to stay with her father and the mother’s application held no merit. ‘‘In my opinion, the father should not be deprived of the custody of the child at this stage,’’ the court added.

2. Sir, you will say in above case access was retained because child was with father. I agree but see the seriousness of IPC similarity to some extent in your and above quoted case reference. So, your question is very good but like other seniors quoted I say it is 50:50 chance in case in hand. You may diagree but then I ask just two questions - what is the age of the child in your case and how long the previous access of father was there before alleged S. 306 happened ?

Regards

1 Like

ashutosh srivastava (advocate/ consultant)     03 February 2010

 Dear Mr. Kumar,

every court has its own view and every case has its own facts. thanks for sharing the news of the trail court. in our system every case has 50-50 chances. and what is 50-50 is always tasty and interesting (britainia 50-50 ting ting ting).

in this case which has been discussed by you at length is entirely different from the case i am talking about in the case cited by you there is no allegation on father that he ever had any in human behavior towards any member of his family.

a man having allegation that he is facing criminal trail for an act committed against his own family is very different from a man having allegation of being criminal towards others. there are many criminals say for example smugglers and murderers  etc who love there families.  

 


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