Category Archives: Child custody

Son to be in father’s custody till mother proves her mental well being !! Himachal HC

Wife tries to bring in a “medical certificate” to prove that the sounds she hear do NOT mean psychological issues !! HC denies her relief and sends case back to Magistrate for marking evidence

“…However, any imputation of reliance upon the certificate issued by the doctor concerned, with a pronouncement therein, of the respondent not suffering any psychiatric disorder, may not, render her to hold the appropriate locus parentis, given it being neither tendered into evidence nor it being proven in accordance with law…..”


IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MMO No. 228 of 2016

Decided on : 31.10.2017

Major Som Nath Palde …Petitioner

Versus

Pooja Kashyap …Respondent


Coram
Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.


For the petitioner : Ms. Neelam W. Bakshi, Advocate.

For the respondent : Mr. Atul Jhingan, Advocate.

Sureshwar Thakur, Judge (oral)

  1. The instant petition is directed against the orders, concurrently pronounced by the learned courts below, whereby the interim custody of minor child Adhrit, was directed to be retained by the respondent herein.
  2. The parties contested their respective capacities to take the optimum befitting care of male minor Adhrit. The petitioner/complainant had contended before the learned courts below that given the respondent being beset with a psychiatric disorder, thereupon she stood precluded to take an appropriate care of the male minor. However, the respondent had with her reply to the application, appended a certificate issued by a doctor, wherein an echoing occurred, of hers being not beset with any psychiatric disorder, whereupon it was concluded that the misgiving of the applicant of the respondent being beset with a psychiatric disorder also hers lacking the befitting capacity to take an optimum care of the minor child, hence stood effaced. However, any imputation of reliance upon the certificate issued by the doctor concerned, with a pronouncement therein, of the respondent not suffering any psychiatric disorder, may not, render her to hold the appropriate locus parentis, given it being neither tendered into evidence nor it being proven in accordance with law. Consequently, both the learned courts below in imputing credence thereto, have committed a gross illegality besides an impropriety. In aftermath, the impugned orders are quashed and set aside. The matter is remanded to the learned Judicial Magistrate concerned, to, in accordance enable the respondent to prove the apposite certificate also to enable the petitioner/non-applicant, to adduce rebuttal evidence thereto, whereafter he shall, within three months, from 23.11.2017, make a pronouncement, upon an application cast under the provisions of Section 21 of Protection of Women from Domestic Violence Act. However, till a pronouncement is made upon the aforesaid application, the respondent/applicant shall continue to retain the interim custody of the minor child. The petitioner/non-applicant shall in accordance with law, hold rights to visit the minor child. It is also clarified that both the contestants shall be permitted to adduce best documentary evidence, in respect of each, hence affirmatively proving the issue appertaining to each holding the befitting capacity, to take the optimum care, of the minor child. All pending applications also stand disposed of.

  3. Records be sent back forthwith. The parties are directed to appear before the learned Judicial Magistrate on 23.11.2017.

  4. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.

(Sureshwar Thakur) Judge

31st October, 2017

(kck)

Go Back, Fight Your Child Custody Battle In Chicago: Delhi Court Tells India-Born Woman

Go Back, Fight Your Child Custody Battle In Chicago: Delhi Court Tells India-Born Woman

The court was hearing a plea filed by the father of the three-year-and-eight-month-old girl, seeking that the child be removed from her mother’s custody and allowed to be taken to the US.

All India | Press Trust of India | Updated: November 18, 2017 01:39 IST
Go Back, Fight Your Child Custody Battle In Chicago: Delhi Court Tells India-Born Woman
New Delhi: An Indian-born US woman has been asked to return to the US along with her toddler daughter by the Delhi High Court which left it to the jurisdiction of American court to decide the child’s custody issue pending there.

The court was hearing a plea filed by the father of the three-year-and-eight-month-old girl, seeking that the child be removed from her mother’s custody and allowed to be taken to the US.

This was in pursuance to a January this year order passed by the Circuit Court of Cook County, Illinois, the US.

The high court in its order noted that it is in the “best interest” of the child to be in her natural environment, receive love and care of her father and grandparents, who live in Chicago, resume her school and be with teachers and peers.

A bench of justices Vipin Sanghi and Deepa Sharma also imposed several conditions, including that the man should fund the expenses of his estranged wife and child on their initial stay in Chicago, provide reasonable accommodation and arrange a vehicle for them.

It also said that the man should meet the woman’s legal expenses which she may incur till the time she finds a suitable job for herself there.

“Just because the woman has found a safe haven in India – where her parents live, she could not have left the US permanently with their child, without caring for the best interest of the child and tearing her away from her father and paternal grandparents, with whom she had spent her initial life,” the bench said.

It added that Chicago, the US was the ‘Karam Bhumi’ of the couple and the woman cannot run away from there and escape to India, which is her comfort zone, at the cost of the child’s best interest.

“The woman should return to Chicago to fight her battles on that turf, so that the child can be with both her parents. The woman is not alone, and carries with her the responsibility of bringing up the child jointly with her father. It would have been a different matter if the couple had not had a child,” it said.

The bench said the woman was able-bodied, educated, accustomed to living in Chicago and was earlier employed before she came to India in December 2016 and she should not have any difficulty in finding her feet in the US.

“She knows the systems prevalent in that country, and adjustment for her in that environment would certainly not be an issue. Accordingly, we direct her to return to the US with the minor child,” it said.

The man said the child was born in the US and they had come to India on a short trip in December last year. They were scheduled to return to Chicago in January and at the last moment, his wife and daughter went missing and he left for the US as his flight was pre-booked.

The woman had filed a suit here seeking dissolution of marriage under the Hindu Marriage Act on the ground of cruelty and that he tried to forcibly establish physical relations.

On the other hand, the man had approached the US court which ordered that the child be immediately returned to her father, who was granted interim sole custody of the child. He then approached the high court, demanding that this order be complied with.

Source – https://www.ndtv.com/india-news/go-back-fight-your-child-custody-battle-in-chicago-delhi-court-tells-india-born-woman-1776989?type=news&id=1776989&category=AllIndia

The court said the child, who does not receive the love, care and attention of both the parents, is bound to suffer from psychological and emotional trauma, particularly if the child is small and of tender age.

Father free 2 take kid abroad without disturbing mother’s visiting rights! Urvashi V Manoj K Jayan KeralaHC

Mother tries to force her EX husband to surrender kid’s passport. Court declines her wishes. Says as long as father does NOT disturb mother’s visiting rights he is free to take kid abroad.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC).No. 106 of 2011(R)

1. V.P.KAVITHA RANJINI @ URVASHI, AGED …¬† Petitioner

Vs

1. MANOJ KADOM POOTHRA MADOM JAYAN @ …¬†¬†¬†¬†¬†¬† Respondent

For Petitioner  :SRI.K.RAMAKUMAR (SR.)
For Respondent  : No Appearance

The Hon’ble MR. Justice K.M.JOSEPH
The Hon’ble MR. Justice M.L.JOSEPH FRANCIS

Dated :15/06/2011

O R D E R
K. M. JOSEPH &
M.L.JOSEPH FRANCIS JJ.,


O.P.(F.C.) No.106 of 2011 R


Dated this the 15th day of June, 2011

JUDGMENT

K.M. Joseph J.,

  1. The prayers in the O.P.(F.C.) are as follows: “(i) To call for the records leading upto Ext.P2 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) To direct respondent to surrender the passport of the child Thejalakshmy @ Kunjatta before the Family Court, Ernakulam.”
  2. Though we have not admitted, it was being considered along with the O.P.(F.C.) No.112 of 2011 relates to the same parties.
  3. The matter arises out of G.O.P. No.964 of 2009 filed by the petitioner. The petitioner moved I.A. No. 3766 of 2010 seeking  O.P.(F.C.) No.106 of 2011 direction to surrender the passport of her daughter, which is in the possession of the respondent before the Family Court. It is the case of the petitioner that following the marriage of the respondent, the child may be taken abroad by the respondent with his future wife in whose company the child will be extremely uncomfortable. Ext.P1 I.A. was rejected by Ext.P2 order. We have perused the order. The Family Court has directed the respondent to file an affidavit to the effect that he shall make available the child as and when directed. Thereafter the apprehension alleged by the appellant was unfounded. The application was dismissed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. When the matter was pending before this Court, apart from the counter affidavit filed by the respondent, the respondent has also filed an additional counter affidavit, which inter-alia reads as follows “(i) That on any occasion that I may take my child abroad along with me using her passport now in my possession, I will do so only after informing the Hon’ble Family Court, Ernakulam in the form of an affidavit about the details of my trip along with my child itinerary of such¬† O.P.(F.C.) No.106 of 2011 trip including the places of destination and duration of such visits etc. (ii)That on any occasion that I may take my child abroad along with me, I will do so only without disturbing or disrupting the visitorial rights granted to the petitioner mother vide common order dt.13.11.2009 on I.A. No. 1565 of 2009 in O.P. No.623 of 2008 and I.A. No.2824 of 2009 in G.O.P.No. 964 of 2009, the Hon’ble Family Court vide the said common order dt.13.11.2009.”
  5. We think that the apprehension of the petitioner would satisfy in the interest of justice. We close the O.P.(F.C) recording the stand of the respondent in the portion of the additional affidavit filed before this Court, which we have extracted above.

K.M.JOSEPH, (JUDGE)

M. L. JOSEPH FRANCIS, (JUDGE)

dl

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