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Koushik Ghosh   25 March 2017

Prevent parental child abduction when u/s. 26 hma pending

Respected Sir/Madam.

I would like seek your valuable suggestion to get rid of an unfortunate situation. I got married on Apr-2002, and a Girl Child was born out of this wedlock on Nov-2010. Now she is 6 years old and Studying in a reputed school of Kolkata. Currently my daughter is with my wife who also works for a reputed I.T. company.

I was compelled to file a divorce suit under U/s. 13 of Hindu Marriage Act 1955 on the ground of wife’s cruelty yielding from an extra marital affair in the Ld. District Judge as Petitioner/Husband , which is currently pending since. Respondent /Wife also filed another Suit U/s. 24 of Hindu Marriage Act 1955 seeking alimony pendetilite, which I have also objected since she earns a hansom salary from  her service. Later I, Petitioner/Husband have also applied for custody of child U/s. 26 of the Hindu Marriage Act, 1955. on first appearance March 2017 Honorable court ordered Respondent /Wife, to produce my daughter at the court premises on next date which is on April 2017, and court is also willing to pass an order to the me the Petitioner/Husband for visiting rights to the child, during pendency of U/s. 26 suit

However I suddenly came to know she is planning to go away to abroad with the Child so that the child custody suit U/s. 26 of the Hindu Marriage Act, 1955 filled by Petitioner/Husband becomes pending for indefinit period, and jeopardize all the future order of Ld. court related to Child Custody and Visiting Rights, which she thinks might go against her.

In order to do so she is trying to get re-issue/re-print or a duplicate passport of the Child who is already having one valid passport in a safe custody by declaring the original passport has been lost.

As far as I came to know that none of the parents, relative or acquaintance of a child can leave the country with the child or children in violation of a custody decree or visitation order or during pendency of a custody case, without a valid court order.

Please suggest what I should do now. How I can prevent her to take my daughter with her in some foreign country.

Thanks

Koushik



Learning

 5 Replies


(Guest)

First of all shame on you, you are not at all behaving as parents.  Now solution to your query.  You may well want to secure an emergency restraining order (In India there is injunction instead of restraining other. To obtain injunction, one has to file an application for injunction with court along with written statement. Then the court decides whether to grant injunction. One can also pray for injunction in the petition itself.

In India, interim orders may be passed by civil courts in matters before them. Such orders can be passed either under the Specific Relief Act passed by the Parliament of India in 1963 or in terms of Section 151 of the Civil Procedure Code of 1908, which recognizes and retains some inherent powers with the civil courts. However the latter provision is usually seldom exercised. In terms of the 1963 Act, an interim order may be passed by the court only if the following conditions are satisfied;
Where there is a prima facie case in favor of the party seeking the order,
Irreparable damage may be caused to the party if the order is not passed and such damage may not be ascertained in terms or money and payable as damages, and
Where the balance of convenience lies with the party requesting for the order.
) very promptly from the family court. An initial temporary order should be easy to secure, but it will be far more difficult to keep such an order in place over the long term or to ensure that it has sufficient teeth to be effective.   Move an application stating the same story as you have mentioned here to the Judge Family Court asap.  

The law relating to injunction has been provided in the Specific Relief Act, 1963. Injunction is categorized in two form i.e. Permanent Injunction and Temporary Injunction. Section 37 of Specific Relief Act, 1963 provides that “temporary Injunction are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit.” The procedure for seeking temporary injunction has been provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an injunction being discretionary equitable relief cannot be granted when equally efficacious relief is obtainable in any other usual mode or proceeding.

Contact your advocate ASAP.​


(Guest)
You can file a fresh OP under guardians and wards act seeking permanent custody of child and include an adinterim injunction order restraining the mother to take away the child overseas. If she disregards the injunction, application can be made to impound her passport and ensures she returns.

(Guest)
Also, it is a serious offense as per passport act to suppress, forge or mislead authorities into giving a second passport. To apply for duplicate passport, a police complaint is necessary if the first passport was lost. A false complaint of loss of passport can land someone in big trouble. So advise is to inform passport authorities immediately to look out for any fraudulent efforts to procure a bogus duplicate passport.

Koushik Ghosh   26 March 2017

Thank you for all your suggestion I will act as soon as possible and informing the same to my advocate. It is really helpful when you all have guided me to the right direction. Thank you all.

(Guest)
You are welcome my friend. All the best to you.

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