• Child custody

Hello I have just filed child custody in district Court as my wife has taken my 6year old daughter to her mom place and not wanting to return we are not divorced my question is can I kidnap my child back from her.. What is the consequences I might face iam planning to withdraw the custody case the moment I get my child back and immediately file a divorce so that she cannot snatch my child back.. Plz advice we are not divorced
Asked 8 years ago in Civil Law

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9 Answers

It is not advised that you do the same, since mother is the natural guardian of the daughter.

1. She might file an FIR

2. She might file a habeas corpus writ in the high court.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

Yes that is the thing, if she will present a petition saying that you snatched the child, she being the natural guardian is entitled for the custody of the baby girl.

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

You should not kidnap your child

2) you should wait for court to pass orders on your custody application

3) you can seek interim visitation rights

4) don't take law into your hands

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

Hindu Minority and Guardianship act

6. Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

Since your baby is just 6 year old, court might consider her claim.

Anyways Sir with all due respect there is a huge jurisprudence in this regard, you can contact me over phone for detailed conversation. Even you can file a petition for Habeas Corpus.

Since you asked for all the steps that she can take, I told you Habeas Corpus also.

Let me know if I can be of further help.

Regards

Anilesh Tewari
Advocate, New Delhi
18103 Answers
377 Consultations

Wife can file habeas corpus petition for production of child if you kidnap the child

Court will direct police to produce the child if you kidnap the child

Custody of minor daughter is generally awarded to the mother

Welfare of child is paramount consideration

Ajay Sethi
Advocate, Mumbai
99776 Answers
8145 Consultations

Dont use the word 'kidnap'.

You have all the rights in your child as that of your wife.

If you get an opportunity to take your child away from her you can very well do it, any complaint before police will not be maintainable.

She has to aproach court alone for child custody and other related reliefs.

Divorce is a different subject to that of the child custody.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

How can she file hebis corpus when I being a father is also natural guardian and I will answer to high court saying the same that the child is with me

Dont be misguided, haebus corpus petition is not maintainable if it is let known to the police that the child is safe and secured with her biological father.

T Kalaiselvan
Advocate, Vellore
89978 Answers
2492 Consultations

A parent cannot be charged with the offence of kidnapping his child. However, as you have filed the case of child custody it is not apparent by your own admission in the petition that you do not have the custody of the child. Now if you bring the child back in the illegal manner conceived by you, the courts will turn against you. Your wife can then file a petition for habeas corpus whereupon the custody of the child will summarily be given to her, which will destroy your petition for child custody. Fooling the courts is not that easy.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

She can file habeas corpus and she will win it also as you must have stated in your child custody petition that you do not have the custody of child. The question then would arise, how did you get the child back? The strategy you have conceived is impracticable and is a recipe for disaster. If you do this then she will get back the child custody from the HC and then no court will ever give you visitation rights much less custody.

Ashish Davessar
Advocate, Jaipur
30840 Answers
981 Consultations

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