Child custody case hanging
I filed a child custody case in Jan 2014 in Tiz Hazari court Delhi. My son is 6.5 yrs old and my wife took him to her brothers house on 21 Dec 2013.
The matter came to Guardianship Court Of Sh Sameer Bajpai on 29 Jan. He ordered for the child to be brought to court on 7th Feb to the respondent my wife. Unfortunately, Guardianship court dissolved and Family court created in Tis Hazari in Feb. Matter came to Sh Brijesh Sethi on 14th Feb, who put a date of 7 March. Meanwhile child was not going to school and put into a creche. Sh Sethi heard both of us and thought that reconciliation will be done. My wife and her family are part of a ashram and severely hypnotised by what guru and ashram leaders say. So she refused to reconcile after 7 efforts by Sh Brijesh Sethi. Despite judge asking child to be brought to court, only once child was brought in which he cried in front of judge to go back to father.
Judge Sh Sethi passed the matter to ADJ Reena Singh Nag for 'personal reasons' on 23 April. Meanwhile next session of school started and child was put in a hindi medium govt school in delhi by mother in class I.
Judge Reena Singh Nag did not hear what is the case about and gave a date of end July. Repeat applications put up in May to hear the case, despite that she only saw child once on 3 june, The child confessed that he is being forced to worship the guru and taken to ashrams. On all further dates we begged judge to see the medical condition of child, he had developed squint, has a head injury in ashram, has forgotten whatever he had studied earlier. Judge Reena Singh Nag never listened to Petitioner whereas believed all lies spoken by wife'e counsel. Any phone call recording confession of child also was not heard by judge. She kept on giving long dates. While in Diwali, the child was with me he confessed that his mama beats him if he speaks to father and that he has been beaten many times. This was too much and I requested Reena Singh Nag to hear the recordings. She said "mama has a right to beat".
This was crossing the limits and I asked Reena Singh Nag to transfer the case back to Brijesh Sethi.
Sh Sethi referred it to Principal Judge HQ Sh M K Gupta Dwarka, who also did not have ower to appoint any other court. So he sent a letter to High Court Delhi for further directions. Letter sent on 18 Nov 2014 and has been marked to Chief Justice on 26 Nov 2014. FIle is back to Reena Singh Nag, and we have no clue when High Court will appoint a court to see this child custody case.
Need advice on - its been 11 months and even interim custody appln has not been decided; no visitation rights; no rights to keep child in holidays; moreover child is severely ill. What should I do to expedite the decision from High Court?
Despite Hindu Minority and Guardianship Act 1956 saying son of age greater than 5 yrs custody is to be with father; why do the courts have a bias towards mother side even when child is suffering. How can I get the interim custody in next 1~2 months?
Asked 2 years ago in Family Law from Gurgaon, Haryana
1) minor child custody is generally awarded to mother .
2) however welfare of child is paramount consideration .
3) as father you have visitation rights . it is suprising that even after 11 months court has not decided your interim application .
4) move HC for expediting hearing of your application
you should wait till the direction of the High Court and when the High Court directed to Family Court regarding the trial Judge, then first of all try to approach to the court for decide the Interim Application on urgent basis. if you think that the trial court is not ready to disposed off your interim application expedite then file a writ petition before High Court For speedy trial/speedy justice under Article 226/227 of Constitution of India read with section 482 of Cr.P.C.
Advocate, New Delhi
Your case is fit where you can apply for direction on trial court for expeditious disposal of the case preferably within a stipulated time.
Such application is filed under Article 227 of the Constitution of India.
The court is bound to pass interim order of visitation. File an application in that direction asap.
1. It is not a fact that "Hindu Minority and Guardianship Act 1956 says son of age greater than 5 yrs custody is to be with father",
2. Child's welfare is paramount while deciding about child's custody by the Court,
3. If your application for visitaion right has been rejected or if the said application has not been heard, file an application before the High Court challenging the lower court order or for an order directing the court lower to expedite hearing of the child custody application filed by you, as the case may be.
1. Normally the minor childrens custody is to be given to the mother.
2. While deciding the custody the welfare of the child is the paramount consideration.
3.Approach the court to allow you for a visitation rights, if it is getting delayed you can approach the High court an direction to the lower court to dispose your application within a shot time.
1. Your entire legal strategy is flawed. When the child was taken away by your wife to her brother's house you should have moved the High Court. This is an opportunity you lost. This opportunity accrued to you again when the child stated before the court on 3rd June that he was being forced to worship the guru and is taken to ashrams. You again did not avail this golden opportunity to recover forthwith the custody of your child. You can still move the HC by explaining the delay.
2. Disposal of cases in the court takes time due to the humongous pendency. Normally, the interim custody is decided within 6 months in Delhi. It is surprising that in your case it has not been decided so far.
3. Letters to Hon'ble Chief Justice will not produce any result. When a court is abolished it takes some time before the new judge is appointed to it as there is an acute shortage of judges. A judge cannot be appointed for only your case. There must be hundreds of cases whose fate must now be hanging in balance due to the fact that the court is lying vacant. So unless new recruitment takes place, the court may continue to remain vacant. This is the practical reality.
4. As suggested earlier, forthwith move the HC, after obtaining legal advice, for the release of your child.
You are advised to approach High Court through WRIT petition and request the court to direct the mother to join the child in good residential school, otherwise the career of the child will be spoiled. The High Court will admit the petition and your son will be admitted at your desired residential school at your cost.