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Sushma Jha (def)     19 January 2011

visitation rights/child custody

I have a 2 yr old daughter who has not seen his father after birth.My husband filed for her custody and got visitation rights for entire sunday every weekend that too without my presence.She cries badly when her father comes to take her.I got her treatment and submitted doctor reports that these visitation should either be in my presence or be completely stopped but still the judge is not listening.I have filed for restitutuion but my husband wants to go for divorce.The judge seems biased.What should I do?How to stop these visitations as my daughter cant speak because of whatever happened?Can I transfer my case from civil court or take any stay order ?If yes how?


 6 Replies

Tajobsindia (Senior Partner )     20 January 2011

@ Harsh, Advocate

A major correction in your so called "legal" advise !

The author has some allegation towards father of the child due to child adjustment issues with father etc. and even after bringing on “records” some medical material the judge seems to ignore a mother's protest and thus she feels transfer of court from present to another one is the right way ahead. Right!

Against which you as a 'advocate' is asking her to go to Supreme Court. May I ask on what basis you are advising her to take such steps? I hope you as a advocate are also aware of extra ordinary legal fees charged by Advocates on Record from clients to approach SC first and secondly, when under Custody Laws all she has to simply do is to file a "Transfer of Court" Application showing "prejudice allegations" and get over with the transfer of court which is a practical within Custody Law solution in hand. 

Kindly refrain from advising something which is totally bald barefoot of legal knowledge advise, even being a Advocate and confuse a “aam public” in the name of so called “legal advise” coming from Advocate in LCI forum which many rely upon. If you may not know the answers to such (Transfer of Court) questions kindly refrain answering to such legal questions. 

@ Author

As a human being first may I advise you to keep your (couples) issues separate from child visitation issues. I understand the child is 2 years old. I also understand you want restitution of your conjugal rights whereas your husband wants divorce means he wants to cut off permanently all cordial ties in between a husband and wife. I also see there are no other criminal nature complaint in-between you two (so it seems from the presented briefs). 

Now, if only child custody / visitation has been filed by him and a divorce suit against your restitution suit and a 2 years old child is central issue in between you two and both of you are young then may you both agree for mediation proceedings in the presence of a neutral person where in both of you can settle respective issues and carry forward with life in the name of child welfare as ultimately in long run with couples having child as central pivotal point the child is major sufferer. 

Replying / concerning both of yours 2 years old child crying during visitation and you as a mother seeking medical help and top it with its submission in Court as ‘material records’ I may say that it is simply un-called for at this stage keeping in view 2 years old child; further simple reason being any child who is not able to meet other side of his/her parent due to passage of time is bound to go through ‘adjustment problems’ initially. 

A suggestion is to prepare the child accordingly since she/he is in your temporary physical custody and concentrate on the main allegations parts in child custody suit if you are respondent therein and he has filed such custody suit. However, do acknowledge that no parent can cut off ties of other parent during any visitation / child custody suits is ‘general consideration’ unless and until the other side is declared a rapist, pedophilic or a gay person read with ‘conduct of other parent pre and during the proceedings’ ! These are Law points and catena of decisions favors such outcomes which by now both of you may be aware of curtsey respective Advocates on records. 

I also understand the motherly instincts showeth in your briefs but ‘welfare of child’ also demands that a child should not be abandoned from getting the love and affection of other side of her / his parentage. Right ? Otherwise a child grows up into a fatherless society which is non-productive in his / her overall growth is worldwide general consensus .

Coming to your “biasness allegation” against the Judge just because a non-adjusting child cries during visitation, in my opinion it may not sustain in Appellate court of Law based on ‘welfare of child’ sound principals [
"in order to balance the scales of justice and considering the sentiments of the father also who has a right to meet his daughter/ son and also in the interest of the welfare of the child who requires the affection of both parents."] even if you have ‘medical records’ of a 2 years old child to rely upon in any subsequent to be filed “change of court application” that you “may” put before a “District Judge” (if ordinary original civil jurisdiction court the present case is before) and/or if the suit is before a Principal Family Court Judge constituted under a Family Court Act, 1984 a “Family Court” then the Application needs filing before State’s HC where a ‘division bench’ hears such suits. Also consider the cost of litigation if allegations are not ‘grave’ ! Now what constitutes ‘graveness’ is a separate matter of discussion which you may ask and I will satisfy you a mother accordingly on words and phrases with appropriate reasoned wordings in future.

However, as a prelims which may be considered by you I may add that it may sound as a futile exercise (my reasoning are already mentioned in above paras) however as a modified prayer which you ‘should’ seek before District Judge and or before Hon’ble HC as the case may be is that “mother may be present at a visible distance and not hearing distance” during few hours of visitation already granted and/or if he has been blessed with overnight visitation then modification to such order to the extent that “set aside the lower court granted current visitation arrangements and modified to such extent that initial few hours of visitation is granted of the child in presence of mother who may be present at visible distance and not hearing distance and regular progress report submitted by mother preferably in 6 months time and parties are at liberty to approach concerned court for modification if any under change of circumstances to our this directions” may be outcome of prayer before HC is my ‘early’ assumptions. This way you as a mother can also attend to your child progress during 'visitation' which is what is granted right now and not 'custody' which is you major prospective ‘apprehensions’ against which you are trying to resist all his (a fathers) visitation advances in a child custody court.

However, I am not sure if in your above briefs “visitation granted to father” are for overnights or for just for few hours, which you may clarify in subsequent forum post if any and accordingly addendum replies may be made thereto.

At the end let me add that if you feel you wants restitution with your husband then these biasness just because for few hours child is not in your company instead in father’s company is unfound pre-assumptions of possibilities in a child custody case is my inference. Hence, little co-operation based on your desire for restitution is suggested and rest is as per your capacity and zeal to carry forward your case(s) to Appellate to more higher forums which no one can stop a litigant(s) from, but propriety and welfare of child demands joint and shared parenting is my appeal to your overall post which you may consider.

“Just as I can’t know when fishes swimming in rivers drink waters, I can’t make out when such apprehensions appraised by a mother are really in the best interest of HER; overruling the “best interest and long term welfare of A CHILD” – A wise saying during 3rd. Century BC



3 Like


Very Good Answer By A professional person.:P

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     29 August 2012

I also stand with tejobsindia on this issue.

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     29 August 2012

I do agree with tejobsindia.

Rajan Bhasin (Law Student)     29 August 2012

Rightly adviced

shamim (computer operator)     30 August 2012

Dear Sushma,


Sorry to interupt you, But, I have the same case as your. But the Victim is Me not my Wife. My wife is blackmailing me from last 6 months and not showing nor giving chance to meet my daughter. My daughter is 18 months old. Both father and mother have equal rights for childrens. Why mother always think children are their property..? May be Husband wife have differences...but a father never want to harm his childrens. When u have good times with husband then he was good, now he is bad...why u people think that ur always right.....Both have the equal rights. When you both love and share ur children...the differences automatically vanish with time.......but its.....thinking should be there....

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