@ Take:
1. A non – custodial Parent has a right to meet his / her child (PERIOD).
1.2 You as a FATHER need to wake up to re-claim your parental rights come what may be (THAT IS THE WAY OUT)
1.3 Only a crying baby gets milk ! (observe a breast feeding mother, she never feeds a child unless a child cries – so take natures clue from there now that you are blessed fatherhood)
@ Legal:
1. You as a father is afraid to meet a 7.5 years old child who is in illegal custody of mother ?
2. File a memo to court to dispose visitation Application as ex party. File an execution petition and base don terms of disposal approach PS of mother and take police escort to visit the child.
3. The abridged legal reasoning in presented brief are as follows;
This right of the Courts, have been guaranteed to the children across the world through various legislations including the concept of PARENS PATRIAE based on the best interest of the child in the AMERICAN LAW and THE ENGLISH LAW, and differently in other countries.
The State Interest: Parens Patriæ is the doctrine under which the state alleges an interest in the care and custody of children (and others not competent to represent their own interests). This doctrine, literally asserting that the king is the parent of the state, was formulated in England in the thirteenth century to assert the state’s role as guardian of those who were mentally incompetent. The notion that the king (or the
government) is the parent of the entire state is quaint; the assertion that the state has a compelling interest in the care, nurturing, and
……….The classical interpretation, for example, might appear to receive support from the fact the rights of parents over their children are limited, potentially override able, fiduciary rights. For suppose that, ab initio, these rights reside in the state under the doctrine of parens patriæ and are entrusted by the state to the natural or adoptive parents. This seems to explain nicely the fiduciary aspect of the rights, why the rights are limited and why the state retains the right to judge when the parents have violated the trust. The state, on this account, is the trustor. As such, the state can set the terms and limits of the trust relationship, specify the ends for which it is constructed, and retain the right to determine when it has been violated.
………..Does not the state have, under the doctrine of parens patriæ, a responsibility to exercise parental rights for the benefit of the children? Can the state, unlike the parent, do no wrong in the exercise of its parens patriæ authority? Are there no limits on this authority? I believe that the state is at least as bound by considerations of the interest of the child as are the parents. The state’s right over children is both limited and non-absolute, as is the parents’.
(Re.: “PARENTAL RIGHTS AND DUE PROCESS” THE JOURNAL OF LAW AND FAMILY STUDIES VOLUME 1, NUMBER 2 (1999), pp. 123–150 UNIVERSITY OF UTAH SCHOOL OF LAW)
Indian Position of Law:
The Hon’ble Supreme Court has reiterated its role as PARENS PATRIAE in case of such children in its judgments quite recently.
Re.: Contempt Petition (Civil) No. 394 of 2009
In Dr. Rajesh Ranjan Vs. Dr. Anupama Tandon & Anr.
Date of decision: 30-11-2010
CASE NO.: Special Leave Petition (civil) 4230-4231 of 2003
PETITIONER: Kumar V. Jahgirdar
RESPONDENT: Chethana Ramatheertha
DATE OF JUDGMENT: 01/29/2004
BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.
JUDGMENT BY: Dharmadhikari J.
The Hon’ble Supreme Court had remarked:
“The High Court, in appeal, by its impugned judgment dated 27.1.2003, has, however, taken a different view and reversed the judgment of the Family Court. On the basis of evidence on record, the Division Bench of High Court has formed an opinion that in the absence of compelling reasons and circumstances, the mother cannot be deprived of the company of the child to the detriment of the interest of the child. The High Court, therefore, set aside the judgment of the family court and directed that the mother should continue to retain exclusive custody of the child with visitation rights to her former husband. The former husband is allowed to keep the child on week ends either on Saturday or Sunday from morning till evening and he can also be with the child during half the period of vacations in the school. The stay of child with each of them during half of the vacations, is to be shared by the two parents under mutual agreement. The father is also allowed to visit the child as and when he likes with the prior intimation and mutual arrangements with the mother. The parties are also given liberty to seek necessary modifications in the arrangement evolved by the High Court.
With the above observations and modification, we maintain the judgment of the High Court.”
Civil Appeal No. 3500 of 2008 [Arising Out
of S.L.P. (C) No. 31324 of 2007) BENCH C. K.
Thakker & D. K. Jain CASES REFERRED TO
Rosy Jacob v Jacob A. Chakramakkal 1973
Indlaw SC 120 ACTS REFERRED: Guardians
and Wards Act, 1890[s. 10, s. 25];
Hindu Minority and Guardianship Act, 1956
The Judgment was delivered by: Hon’ble
Lordship Sh. D. K. JAIN
Granting custody to the father the court made
the following directions in para;
“3. The appellant will also allow the child to live with the mother during school vacations or on appropriate occasions.
4. Master Satyajeet shall be allowed to attend and participate in family functions/festivities subject to his school attendance and examinations etc. which are held in the family of her mother or during any other occasions as jointly agreed to by the both the appellant-father and the respondent- mother.
5. Any other further arrangements mutually agreed to between the appellant-father and the respondent- mother in the interest of the child."
Consequently, the custody of the child was restored to the father. It is this order of the High Court which is under challenge in the present appeal.
15. In Rosy Jacob Vs. Jacob A. Chakramakkal1, a three- Judge Bench of this Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of 1973 Indlaw SC 120 welfare of the minor children and the rights of their respective parents over them.
"809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other." *
The order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained. We feel that the visitation rights given to the appellant by the High Court, as noted above, also do not require any modification. We, therefore, affirm the order and the afore-extracted directions given by the High Court. It will, however, be open to the parties to move this Court for modification of this order or for seeking any direction regarding the custody and well-being of the child, if there is any change in the circumstances.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT: CRP No.276/2003
Date of Hearing : March 15, 2004.
Date of Decision: April 12, 2004.
Hindu Marriage Act 1955 -Custody of the
Minor Child Paramjit Singh Lamba Vs. Smt. Prabjot Kaur
CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN
“The Hon'ble Supreme Court, however, has clarified in Kumar V. Jahgirdar vs. Chethana Ramatheertha, 2004(1) Scale 149 that it does not subscribe to the observations that a mother is always preferable to the father so far as the custody of the child is concerned. Although the Hon'ble Supreme Court had found that the child had not been brainwashed in the case before it, it was expressly aware of the reality that the child's mind is invariably poisoned against the other parent. Such a practice must be unreservedly deprecated, as it is wholly deleterious to the welfare of the child concerned and to the development of the personality. Every child requires exposure to and influence of both his parents.
It is for the Mother to ensure that the Daughter has a healthy interaction with her Father, lest an opinion be formed that she is deliberately turning the Daughter against her Father. If such an opinion is formed by the Court, there would be no option available to the Court but to award/transfer the custody to the Father in the hope that with the change the child would adopt a more balanced and healthy attitude towards both her parents.”
IN THE HIGH COURT OF JUDICATURE AT
MADRAS
DATED: 24.04.2007
CORAM :THE HON'BLE MR. JUSTICE S.
ASHOK KUMAR
CRP. PD No.439 of 2007 and Tr. CMP. No.79 of
2007
Hari Narayanan Vs. Meenakshi Narayanan
“…..The minor child is now aged 5 years. It is also to be noted that when on the earlier occasion the respondent came to India to attend the proceedings in the Divorce Petition filed by the petitioner, she had left the minor child at USA and therefore, it cannot even be contended that the minor child cannot live separately from the respondent / mother, the respondent for a temporary period.
………..The anxiety of the grand parents to see the grand child cannot be determined in terms of money. The parents of the petitioner are in the evening of their life. Therefore, their anxiety to see grand child requires paramount consideration like the welfare of the child which also requires paramount consideration. Therefore, it will be only proper to direct the respondent to bring the child to India without any resistance taking refuge under the ex parte orders of the Superior Court of California, which is not binding either on the respondent or the Courts in India
……. In the above circumstances, the respondent is directed to bring the minor child Raahul Narayanan for stay at Chennai with the petitioner, father of the child, for one week during Christmas holidays and two weeks during summer holidays between June, July and August 2007. All the expenses for travel and stay of the respondent and child for the said purpose shall be borne by the petitioner himself.”
CASE NO.: Appeal (civil) 6626 of 2004 PETITIONER: Sheila B. Das
RESPONDENT: P.R. Sugasree
DATE OF JUDGMENT: 17/02/2006
BENCH: B.P. Singh & Altamas Kabir
JUDGMENT: ALTAMAS KABIR, J.
“On a consideration of the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor's preference need not necessarily be decisive but is only one of the factors to be taken into consideration by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor child, the mother, who had re-married, was given custody of the female child who was on the advent of puberty, on the ground that at such an age a female child primarily requires a mother's care and attention. The Court was of the view that the absence of female company in the house of the father was a relevant factor in deciding the grant of custody of the minor female child
The appellant will also be entitled to the custody of the minor for 10 consecutive days during the summer vacation on dates to be mutually settled between the parties.
MOTHER’S acts are a clear violation of the rights of the child as enshrined in UN Convention on the Rights of the Child (Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force on 2nd. September 1990, in accordance with Article 49 and ratified by India), which is openly being flouted by the mother.
American position of Law:
The same provisions of law and the role of the State as a guardian is revisited in portions of the article titled “ARBITRATION OF CUSTODY AND VISTATION DISPUTES” published in the NEW YORK LAW JOURNAL, Oct 25, 1994
The position is further clarified in yet another article titled “The Child in Court: A Subject Review” published by the “Committee on Psychosocial Aspects of Child and Family Health” in the AMERICAN ACADEMY OF PEDIATRICS PEDIATRICS Vol. 104 - 5 November 1999 (pages 1145-1148).
POSITION IN THE AUSTRALIAN LAW:
parenting plans
2.21 As a consequence of Schedule 1 of the Family Law Amendment Act 2003, parenting plans are no longer required to be registered. However, provisions of this division of Part VII are still applicable to the variation or revocation of parenting plans. The court may register a revocation of a parenting plan if it considers it appropriate to do so “having regard to the best interests of the child to whom the agreement relates” s 63E(3).
POSITION IN THE CANADIAN LAW:
Download from the website of the Canadian Ministry of Attorney General www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/section2.pdf
POSITION IN HONG KONG LAW:
2.147 The court can use its parens patriae jurisdiction to protect children when there is a conflict between the interests of the child and those of a parent or parents. Lord Esher MR in R v Gyngall 1998 described this jurisdiction quite well.
