• Jurisdiction issue in child custody and advise

I got married in January 2011. We both belong to Kashipur Uttrakhand, We had a Love Marriage. Before Marriage i was working in Delhi n immediately after our marriage, we shifted to Delhi always been a nuclear family as parents live in Kashipur. I have one daughter age 5 years (Completed on 11 Apr.’17) & she was studying in Noida.
Since we are married my wife carries a negative approach for my family members with a wish of me finishing all my relations with my family. Not agreeing to which she is to make issues out of small things, leaving home and going to her parental home, calling both the families for same discussions, me apologising for not doing anything etc. Now this has become her normal practice.
This Holi (Mar. 2017) we have gone to Kashipur happily as a normal practice and then she refused to come back following to that I and my family tried to have a discussion. She denied and immediately on 3rd April 2017 her Mother filed the police complaint which transferred to women cell. During the counselling session in Women cell she (My Wife) filed the maintenance case U/S 125 in local Kashipur Court dated 25Th April 2017 report. Women Cell Counselling finished on 28th Apr. 2017
30 May 2017 She lodged the FIR again me and all my family members under section 498A/323/PC & ¾ dowry. Investigation is in process for same.
I filed section 9 case in May 2017 in Delhi. And now I am trying to file child custody case from Delhi. But Judge is not agreeing on jurisdiction issue. Given next date for discussion on the same. Kindly show me a way. I am confused.

Please advice on below stated matters :
Jurisdiction issue
Section 9 Withdrawal or shall I continue
On Maintenance issue
Any Other advice in my case…

Regards,
Asked 7 years ago in Family Law
Religion: Hindu

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5 Answers

Hello,

An application for custody of the child under the Guardianship and wards act can only be filed at a place where the ward is residing, so in your case it has to be filed at kashipur.

The petition under section 9 of the Act can be presented at various courts as per section 19 of the act, which reads as follow:

19 Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

[(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Maintenance case you will have to fight at the place here it has been filed.

Regards

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

As per the provisions of the Guardian and Wards Act the father can not file custody suit form his place of residence.

Such custody suit is to be filed from the place where at the time of filing the suit if the child is residing.

So it is to be filed in Kashipur where the child is presently located.

So withdaw it and file afresh in Kashipur.

Devajyoti Barman
Advocate, Kolkata
23198 Answers
510 Consultations

1) you have to file application for custody of case in kashipur wherein child is residing with her mother

2) with draw section 9 petition . it is useless

3) you have to pay maintenance to wife if she is not working

4) maintenance depends upon husband income , wife income , standard of lifestyle

Ajay Sethi
Advocate, Mumbai
96803 Answers
7810 Consultations

You say that your wife went to Kashipur in March 2017 with your child, and has been residing there ever since. If the child had been residing in Delhi just before your wife took him to Kashipur then jurisdiction lies with the Delhi court to try and decide the petition. You may have to approach the High Court for the most appropriate relief if the trial court throws out your petition on the issue of jurisdiction.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

The child Custody case can be filed within the territorial jurisdiction where the child is currently residing..

You may think about withdrawing the RCR case and get the maintenance case transferred to Delhi through supreme court.

T Kalaiselvan
Advocate, Vellore
87004 Answers
2335 Consultations

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