1) don’t appeal in SC
2) don’t file another CRP
3) you could have requested HC to direct family court to dispose custody application within 6 months or so . Sought expedited hearing
4) file another IA in lower court
Urgent help: child custody, wise to approach apex court?
Dear Lawyers, FACTS of the case: Minor is aged: 3 Years boy Parents: Sunni Muslim, now divorced. Points raised by petitioner in I.A & O.P (I.A & O.P) both for custody: -Ignored vaccination for 8 months until brought to the notice of court , -ignored dental treatment for 8 months until brought to the notice of court -acted against advise of doctor by refusing admission in hospital of minor suffering 105 fever - Did not admit in any school, kids his age are already in nursery - Mother involved in adulterous life , no source of income, parents in debt, - Mother is suicidal admitted in counter and also sucide note - admitted to adultery in writing Counter by respondent: denying all allegations except sucidial tendency accused petitioner of trying to kill her and the minor lodged police complaint, police after enquiry took no action. Family court judged posted I.A hearing date after 2 months, I filed CRP got high court order for expedite disposal. I.A decision : Partly allowed for 2 hours every Sunday, at respondent house. saying giving interim custody will kill the purpose of O.P n scrutiny of evidence will be done in O.P. Decree or order copy was not made available for another 2 months.. none of the documents submitted were marked by family court. Post order, filed another CRP my lawyer suggested I appear party in person, Today CRP was dismissed H.C judge heard the submission at length and declined to review any evidence and suggested to approach lower court for any grievance... The lower court was clearly biased....lower court could have given shared time atleast. should I - approach Supreme court - file another CRP? (can i file another CRP?) - file another I.A in lower court - Wait till O.P is finished? ( which may take years)? Or you suggest another course of action. Each and every claim in my petition is genuine with genuine documents, my child's future is really at stake. I need an advise on course of action now....
Asked 6 years ago in Family Law
Religion: Muslim
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17 Answers
1/if the order of court with regard to visitation of the child is flouted or not complied with then you can file contempt petition in high court.
2.Filing of another IA would be wastage of time and money.
3.In the meantime proceed with the OP with all seriousness and vigour.
If you want to take up the matter before supreme you can certainly do that and challenge the high court order and if need be you can also seek the custody of your child
GOPAL VERMA
ADVOCATE ON RECORD
SUPREME COURT OF INDIA
You've rhe option of assailing the order passed by the High Court in the second CRP in a SLP before the Supreme Court.
You can't file another CRP against the same judgement and order passed by the Lower court disposing off your IA because the same will be barred by doctrine of res judicata.
Take a chance of going to the Supreme Court as the Lower court won't entertain anymore IA.
Approach the Supreme Court challenging the judgement passed by the High Court on the merits of your case.
Yes another CRP can be filed in Highcourt in shape of review before the divisional bench by giving valid legal grounds.
If such is the case then I would advise you to approach the SC and challenge the order of the High Court.
Another CRP in the High Court will be barred by res judicata.
Welfare of child is of paramount importance and this can not be ignored by any court for any reason.
Let me know if I can be of further help.
It was a misguidance for approaching high court with the CRP, which was dismissed.
There was no necessity to approach high court seeking expeditious trial of the IA which was adjourned for just two months. This interval is routine hence there is no reason for getting agitated over the delay.
The high court rightly dismissed the CRP because there is substantial reason for any grievance to be redressed on this count.
If you are agitated over the issue decided by high court and approach supreme court, there also you will get the same treatment hence better to contest the case in the trial court itself.
If you feel that the trial court is biased or may not be judicious and would conduct fair trial, you may seek to transfer the case to some other court.
@Vibhanshu Srivastava @Anilesh Tewari What if Superem court also trashes my applicaion? As the lower court did not consider any proofs and did not mark any of the evidence. Also the High Court Judge, despite my several requets refused to look at or consider the evidence attached? It was very disappointing moment @ High court to see evidence being simply set aside and pronoucing the predetermined judgement without considering the facts of matter. This is a very geniune case. @Rajesh Kumar , Everyone here and also in Hyderabad High Court says its not possible to file another CRP, how can I do that or will you help me file review CRP here? @T Kalaiselvan, I understand what you mean, but this case is extreme. The boy is not being looked after in a good manner and not being provided basic medical care(I have video when she snatched the boy in 105 fever n did not admit in hospital). And his acedemics are being ignored, stakes are too high. So 2 months delay was a big deal. The other point being:- In my I.A. I was allowed to meet the boy at my ex-wife insisted I visit her residence, which was risk. I requested to bring the boy to public place she refused. I am planning to move an out of order to file I.A. for modificaion to meeting place to be fixed as court premises. Will filling this fresh I.A in previous I.A effect my ability to approach Supereme Court? If this I.A does not effect my Supere Court application, I plan to do things in following order: - File I.A to modify earlier order, to appoint court premises as place of meeting. - File another petition for undertaking of scholl expenses and admission fee in good school, around end of november. - Go to approach Supere Court. - If no relief from Supereme court, file another I.A for full custody and get all evidences marked and approach H.C & Superemce court if required. Please advise.
Asked 6 years ago
@T Kalaiselvan, I understand what you mean, but this case is extreme. The boy is not being looked after in a good manner and not being provided basic medical care(I have video when she snatched the boy in 105 fever n did not admit in hospital). And his acedemics are being ignored, stakes are too high. So 2 months delay was a big deal.
What may look very important and urgent to you may not be perceived in the same manner by the judiciary since this do not attract an emergent situation.
The child was suffering from fever and it was a temporary issue, which was solved then and there, at least it did not stretch till the date you approached high court.
Also the nursery school admission do not attract any importance or urgency hence your application filed to convince the court to the extent of your expressions or feelings.
The courts cannot be made to dance to your tune.
The law is common for all hence your whims cannot find priorities in law.
You have to understand that the High court and Supreme Court are the court of record and you will ahve to file case on legal flaws rather than on factual flaws.
Share the copies of the judgements for more concrete advise on the same.
Filing an application for modification of I.A. Will not effect your right to approach the SC.
Course of action as fold by you is right partially, I would confirm the same after perusing the order of the HC and the lower court and other records.
Regards
1) Filing appeal in SC is very expensive proposition. Hence did not advise you to file appeal in SC
2) further there is no guarantee that you would succeed in SC after spending lots of money
3) if you file IA affect your ability to move SC
4) you should seek HC orders to expedite hearing and final disposal of custody application in trial court
Precisely so, because the Lower Court has failed to appreciate the evidence in accordance with law, and the High Court did not take cognizance of this mistake of the Court below, you appeal before the Supreme Court will have some merit.
Challenge the HC Judgement in a leave to special Appeal. Mostly likely, the Supreme Court will direct rehearing before the High Court after quashing the judgement passed by the High Court.
Hello Everyone! Thanks for your valuable inputs last time, ad advised instead of going to high court I approached lower court for modification of the order and requested a change in venue of meeting from my ex-wife's home to court premises and day of meeting from Sunday to Friday as Friday is holiday for me. I also filed a rejoinder with additional documents and pleadings... After a about 45 days yesterday was hearing on the matter and the judge did not listen to any of my requests for modification, he seems to be pissed off as we approached the high court for expatiated disposal of I.A. He told me to visit my ex-house and held me responsible for non compliance of the last order, also the order stated we could meet at some other mutually agreed place which respondent did not wanted to comply with...he told me i must go to her place and if I face any problem i must approach the police, the fact is even if my ex-wife does not create a scene i am uncomfortable going to her place.... Also I begged at least the day be changed Friday instead of Sunday, as I work on Sundays he says I must sacrifice my work if I love my boy????what sense does it make? Finally when I kept requesting he told me " GO AND CHALLENGE " this order in high court....and he dictated the order stating I did not comply the order while, I did show my willingness to comply but my ex-wife did not wanted to meet at public place? I am clueless as to what is happening? And what should I do? Please advise
Asked 6 years ago
Challenge ordervpassed by trial court in HC
In alternative visit child in evening after your office gets over
The court cannot be held responsible for your convenience.
The court shall pass orders as per law, it is for you to execute the orders or not.
Your oral requests cannot be acceded by court especially when the court has already passed an order in this regard.
You can file another application seeking to modify the orders as per the schedule you may present before the court once again.
As rightly advised, you may approach high court if you have any grievance against the lower court order.
You have no option but to challenge this order on its merit before the High Court.
Approach the High Court and challenge the instant order by which your application for modification has been rejected.
In my advise challenge this order at the earliest before the HC by means of which your application has been rejected.
Regards
Dear All, My case seem to have taken a weird turn: Today we filed in family court the Memorandum of Compromise with following: - Reason for compromise is, in the interest and welfare of minor. - Father to have sole and permanent custody, all decision and responsibility to be of father. - Mother to have access to child on weekends. But the family court tried to dismiss the petition & compromise on the grounds, in Muslim personal law father cannot have custody before 7 years age of boy ...my son is 4 years now. This was shocking!!! - My lawyer has filed few citation highlighting welfare is of paramount consideration regardless of personal laws...judge said he will look into it for relevancy to the case - We have prepare a joint memo praying for case to be referred to lok-adalat On court website the case status is updated as CALL WITH IAS Hearing is next week....What do you advise? Please share your opinion and my options if he does not allow compromise in next hearing ....as per terms of compromise I have brought the boy to my home now.
Asked 6 years ago
Your lawyer is absolutely correct that welfare of child is paramount consideration
2) if both parties are willing that custody of child be with father Court should pass orders on basis of compromise arrived at
3) you can have case referred to Lok adalat