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shamim (computer operator)     11 September 2012

Want father rights on children

Dear Sir,

I have married to hindu girl. It’s a Love marriage. I am muslim and she is hindu Girl. I have married to her in 2009. At the time of marriage she agree to change as muslim and accept my family. I have done the marriage according to their wish..Hindu marriage in Temple, then we did Nikha ( Wedding ). Now we have 18 months Baby ( Girl Child ), After marriage my parents and my relatives ignored us and away from us. Now after birth of my Baby, now are slowly coming to see my daughter and everything is going to be well. My parents told me to change my wife and teach her Namaz and our muslim culture. Now my wife refusing to change and nor want to meet or look after my parents. She is always threatening me and my parents to book Dowry Case. Where as Their parents not given me a Single Pie..We are now also struggling to survive. Once she booked a police False complaint against me of Harassment, there in the police station, I told the fact that she is ignoring my parents and not want to meet and stay with them. The police scolded her and we compromised there for the sake of our Daughter. She came to my house and stayed for 8 Days, When my mother came from my Native place for Medical Check-up, she packed her suitcase and gone to her mother’s house. Now its 2 months over, She not coming nor Showing my daughter. She is blackmailing me to put dowry case against my family.

I love my daughter, she is not giving my daughter nor showing me from last 2 months. I have informed the same in the Police station, they told me that they are helpless. Indian law don’t have any Law for Men, Police, Court, Public and Society always support women. We will do only Counseling.  

Sir, Please help me, I want to see my daughter, meet my daughter, its 2 months over. I always compromise with my wife for the sake of my Daughter. But she is taking this as advantage and blackmailing me with their parents and brothers. Please help me sir, I will be very grateful to you.

Shamim



Learning

 12 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     11 September 2012

Dear Mr.Shamim,

 

First things first - you said your wife agreed to convert, but apparently she has not. In that case - the marriage between you is null and void and non existing in the eyes of law. The Marriage by Hindu rites & ceremonies is void because you are not a Hindu, and the other way round for Muslim Marriage. Hence in this case - it is just a live-in relationship technically. Though having said that, she can still file a 498a/406, and you have to guard yourself against that by making the necessary intimations at this stage replete with all rulings and safeguards laid down by courts over the years.

For better understanding read : https://bharatchugh.wordpress.com/2012/07/07/how-to-fight-a-false-498a-case-in-india-a-step-by-step-legal-strategy/

 

Adv. Bharat Chugh

*Supreme Court of India

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     11 September 2012

Dear Shamim,

1. Your marriage is null & void, neither of the ceremonies is valid because of the simple reason that you two don't belong to either religion.

2. But still - your relationship qualifies as a relationship in the nature of marriage, which would enable your wife to false dowry cases against you. Guard against that - for a better understanding of the risks implicit and oon how to counter them visit : https://bharatchugh.wordpress.com/2012/07/07/how-to-fight-a-false-498a-case-in-india-a-step-by-step-legal-strategy/

3. You can seek visitation rights at least by filing a petition to that effet in guardianship court.

 

Regards,

 

Adv. Bharat Chugh

*Supreme Court of India

shamim (computer operator)     11 September 2012

Dear Sir,

Our marriage is Registered in the Registered office. How can i apply for Visitation Rights. I am requesting her to show my Daughter, but she is blackmailing me everytime....by threatning...or by rude answer. How can i get my daughter or meet my daugher....please sir, this is do or die situation. I am working for a private company and financially suffering, this also one reason where i am unable to take any steps...please help me sir,

Adv Archana Deshmukh (Practicing Advocate)     11 September 2012

As the baby is only 18 months old, you can get visitation rights and not custody. File a petition under the guardians and wards act and seek visitation rights to meet your daughter.

shamim (computer operator)     11 September 2012

Dear Archana Madam,

 

Thanks a Lot for your help and advise. I will consult a Local Advocate and file a petition under guardians and wards act ( for visition Rights ) I will update what the local lawyer advise me.

If i will able to see my daughter with the help of Archana medam and Bharat Chugh Sir, i will be very grateful to you all. You are not only helping a Father, you are also doing work for the mankind. Thanks a lot All of you.

Regards,

Shamim

Tajobsindia (Senior Partner )     11 September 2012

 

 

Originally posted by : Adv Archana

 


As the baby is only 18 months old, you can get visitation rights and not custody.
File a petition under the guardians and wards act and seek visitation rights to meet your daughter.

 

1. BINGO !!! Beautiful observations by Bharat on status of  this queriest marriage lucidly put by Bharat.
2. I completely disagree to Archana's advise on usage of GWA in this facts filled brief. Archana, for god sake the queriest is Muslim natural father / husband and GWA The Act is not at all applicable to him.
3. However, not to dampen queriest spirit to seek (visitation) of his only child, but, he has to clarify the "legal status" of his marriage first of all which Bharat lucidly pointed out in his first reply, based on which all future family law related litigation including child visitation / custody etc. should be launched and not before that is my view which arises out of the peculiarity of inter-religious marriages as in this fact filled brief before us. 

Adv Archana Deshmukh (Practicing Advocate)     11 September 2012

Originally posted by : Tajobsindia
 
1. BINGO !!! Beautiful observations by Bharat on status of  this queriest marriage lucidly put by Bharat.
2. I completely disagree to Archana's advise on usage of GWA in this facts filled brief. Archana, for god sake the queriest is Muslim natural father / husband and GWA The Act is not at all applicable to him.
3. However, not to dampen queriest spirit to seek (visitation) of his only child, but, he has to clarify the "legal status" of his marriage first of all which Bharat lucidly pointed out in his first reply, based on which all future family law related litigation including child visitation / custody etc. should be launched and not before that is my view which arises out of the peculiarity of inter-religious marriages as in this fact filled brief before us. 

 

@Tejobsindia,


I completely disagree with your hasty comments and am really surprised to hear this from YOU that Guardian and Wards Act is not applicable to muslims….


There are number of various decisions of the SC and various HCs under the GW Act where the parties are muslims. For example go thru the following link, https://www.indiankanoon.org/doc/1655422/  Athar Hussain vs Syed Siraj Ahmed & Ors. on 5 January, 2010 it is the decision of the SC under GW Act and the parties are MUSLIMS.. 

https://indiankanoon.org/doc/1335925/ Rafiq vs Smt. Bashiran And Anr [Rajasthan high court]


Guardian and Wards Act is a general law applicable to people of all religions and is equally applicable to MUSLIMS.

While appointing a guardian of a minor in a petition under the Guardians and Wards Act the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the minor consistently with that law.


Read the second post of the querist where he has made is clear that his marriage is registered  in the registrar's office, so it must be under Spl. marriage act and hence a valid marriage. Its not uncommon where parties belong to different religions to marry as per the both religious rites of both the bride and groom and also marry under SplMA for validation.


@  Shamim,


You can very well file a petition seeking visition rights to meet your daughter under the Guardians and Wards Act. It is fully applicable to Muslims.

     

Tajobsindia (Senior Partner )     12 September 2012

Archana,

 

I stand by what I said in peculiar facts situation before us relating to this query.

 

- Read para 25, 28, 34, 41, 43 of first ref. you placed for my review.


-  Here I donot wish to presume if parties have registered under SMA or not unless specifically averred by queriest himself.

- Moreover
the Muslim Personal Law is a special law which must be taken to override the provisions of the GWA The act which is a general law and it should be deemed to override the provisions of the GWA The Act which is a general law is my view.

 

- The principle that one cannot approbate and reprobate in the same proceedings must prevent the petitioner from acting in derogation of the provisions of the GWA The Act applies squarely here is my view.

 

 

When personal law of petitioner / father is there (i.e. Muslim Personal Law) then he cannot use GWA is my view for custody. No HC nor SC has said so in tombstone wordings including ref. SC Judgment hence I still differ and there is nothing to get surprised about my say on this query or otherwise in generic anywhere in LCI till date and in future.


I know exactly what I express here in LCI and respect your views too on many postings - though with silence

 

Adv Archana Deshmukh (Practicing Advocate)     13 September 2012

 

@Tejobsindia,

 

 Here I will also stick to my opinion.................When the querist have made it clear that the marriage is registered in the registrar's office then I wud not like to presume it to be a void marriage bcoz the registrar will never register a marriage which is void. So naturally it must be regd.under Spl MA which is a usual practise though the words spl MA is not specifically used by the querist. 


In my opinion the  provisions of Guardians and Wards Act apply equally to Hindus and Mohammedans and a case for custody of a muslim child can be filed under the GW Act and the court is always guided by the personal law which is applicable to the child. There is nothing in the paras referred by you that say that a petition for custody of a muslim child cannot be filed under the GW Act or that it is not applicable to muslims on the contrary it makes it clear that welfare of the child is of paramount consideration and there are number of decisions in support of this. Also there are many judgments of various HCs / SC in regards to custody of a muslim child which are passed under the GW Act.

 

As far as I have seen, places where there is no family court, the custody matters of a muslim child are filed and can be filed under the Guardians and Wards Act ONLY {under which Act it can be filed otherwise?}.  And as I had already said, the court decides the case taking into consideration the personal laws applicable to the minor and this is provided in the Act itself and the welfare of the child is of paramount consideration in every case. There are number of judgements where the court have kept the personal law preferred parent aside and given the custody to some grandparent / relative where the welfare of the child demanded so, and this is also the case in places where there are family courts and family courts act applicable.


Anyways, this is my opinion, and everyone else also has the right to have his / her own opinion and I always respect that :-)

Khaleel Ahmed (Legal Advisor)     13 September 2012

Shamim stated that, he married with hindu girl at temple  according to Hidu rites and rituals. Later the wife who is hindu as per her promise she converted to Islam .They again married as per muslim shariath.The first marriage in the temple naturally ended as soon as they converted to Islam, both entered a valid nikah. Till the day the Nikah is valid, they are husband and wife under the Shariath Law. Now if she again converted to Hidu religion , she can convert as she likes, but the nikah tie between them naturally  breaked  as soon as she turned as Hindu. The daughter shall be treated under the law as Muslim only, till she attain puberty.Being  a natural father of the child he have legal rights and liabilities . He should pay the monthly maintenance to the minor girl child till her marriage.Further he can file custody case before Family court.The court may grant custody of child in his favor as her mother turned to hindu.A muslim child can not be given to the non muslim mother. I advise to Shamim to file a custody case on the ground of his wife turned to hindu religion.

Khaleel Ahmed (Legal Advisor)     14 September 2012

Archana also advised correctly. The Guardians and Wards Act  applicable in the present circumstances.

shamim (computer operator)     14 September 2012

Salamwalkum Khaleel Ahmed Sir, Nameste Archana Medam & Bharat Chugh Sir,

Sir, 

My wife stopped every puja and other things in my house. I do respect to her religion also. I am not a Orthodox. I told her to Learn Namaz, Roja as per our Muslim religion, and take care of my Parents and my family. She is not giving respect to my parents nor taking care. As my parents stays in Orissa, i am staying at Andhra Pradesh ( Visakhpatnam ). She will not calling my parents for 6-7 months, where as every daughter in-law have the duty to call at least weekly once about their health condition. Where she call every 10-15 miniute to her mother asking how much salt i have to put in Curry. I am pointing out this because, she is very near to her mother, and I am not against that. but she not taking care of my mother and my family. I want same respect and care she should take care to my parents and my family, as she is taking care of her parents and her family. One every son want her wife should take care of his old parents. My mother is heart patient and she came to Vizag ( where i stay ) for medical check-up, my wife left to his mother's house and not retruned from last 2 months, i am singly taking care of my mother by cooking, giving medicine, and doing my duty at office.

My wife is doing the same thing from last 2 years, i am comprising every time for my daughter sake, and she is taking this as advantage and blackmailing me with my daughter. I love my daughter very much, i can't staty with out my daughter.

I will forgive her if she come back and  ask forgiveness to my mother and promise me to take care of my parents and do namaz as per our religion. I will accept her. I will mouling for my daughter


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