• Custody of 4-year child

I have taken my son from my wife and mother in law, who given voluntarily on 13th Jan 18 and dropped / send off till Metro Rail to attend Pongal at my native town. But on 13th night itself my F-in-law called and give it back . I denied . So he appraoched police and called . I already left city . I became vexed with this instance and next few discussed with my in laws and told that i will not give back my sob . So 6days later on 19th Jan my father in law given a wrong compliant by forcing my wife as boy missing and suspected is father . CI/ SHO , who was under due influence and registered FIR. So I took anticipatory bail on 30th Jan 18 from Hyderabd HC CRLP 704/2018. But police asking me to handover my Son to PS, while surrender and they will give my son to mother. otherwise objecting to consider my surities. Is it legal ? Can I object it. Any solution. 
My wife is suffering from Schizophernia psychic disorder . And last 14th August,17 onwards we are living separately. 
Kindly suggest me .
Asked 4 years ago in Criminal Law
Religion: Hindu

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20 Answers

No FIR could have been entertained in the present matter.

Your act of taking over the custody upon your son, can in no way be labelled as his abduction..

I will advise you to take a chance and file a petition for quashing of the FIR.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

No case of kidnapping is maintainable against father as he is the biological father of child

2) make application in family court seeking sole custody of your child

3) mention wife suffering from mental illness abd child is not safe in her custody

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

You need to file a case of custody on the ground that the wife is suffering from psychic disorder.

Till the age of 5 the child normally is given in the custody of wife as this is very emotional period and child needs the company of mother after 5 year of age father is natural guardian and if child wants father can get custody

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Hello sir , if the court has not passed any order of custody in favour of mother , then no one even police can force to give child custody to mother .. Under what sections FIR is lodged ?? Kindly elaborate .. In meanwhile it is advisable to file for custody of child in court

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

it cannot be termed as abduction and illegal .. If any such FIR has been filed , go for quashing in high court

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

File petition for quashing of FIR in HC

Ajay Sethi
Advocate, Mumbai
87892 Answers
6207 Consultations

5.0 on 5.0

Hello,

Grounds on which the AB has been granted to you is also an appropriate reason for you to file a petition for quashing the FIR

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

File a petition for quashing of the FIR and if the HC is not willing to quash the FIR then get an order that the police shall not force you to surrender the child custody, and if mother wants custody she can invoke appropriate and alternative remedy for the same.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Since you have already taken bail there is nothing to worry about sureties in which police has no role to play. So ignore such threats of police.

2. Your legal obligation to handover the child to police doesn't arise if there is no specific direction by court.

3. Don't meet the police and to avoid further harassment file a custody suit seeking appointment of yourself as guardian of the child.

4. Once custody issue reaches to civil court the unwarranted interference of police will end soon.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) As per law and most of the citation awarded the case in favour of mother till the child is in minor age 5 years. Because mother is the best natural care taker. After the 5 years old boy child can be in father's custody.

2) If you still want boy in your custody than you have to prove in the court that your wife is suffering from Schizophernia psychic disorder and she is not in position to take care of your son.forget the rest of the drama took place in your life recently.

3) As of now handover son to police and close the matter here and go by legal way ask for child custody in the court and prove that you are the best care taker.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

That is why I say that take your chance and file a writ petition for quashing of this FIR.

Incase the SHO takes the custody of your son from you, you'll have no option but to apply for his custody by way of preferring an application under the provisions of the Guardians and Wards Act.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother Gender is not a consideration in deciding matters of child custody and guardianship. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother. Custody of older boys may be given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgments.

Your lawyer is right. The police will detained you up to handing over the child. If there is no specific clause to handing over the child is not mentioned in the APB then there is no need to hand over the child. If the mother want the custody of child she need to file application for the same before family court.

Children are fragile, handle them with care. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.Fathers in India has to face a terrible truth that a minor child custody will be undoubtedly awarded to mothers, unless proven that she has neglected her child. Most fathers don’t want to confront the issue, not realizing that they put themselves in more vulnerable state and at loss during divorce proceedings, especially while fighting for child custody and support.Divorce advice for fathers is not about finances or managing their personal post-divorce life, but for their ability to deal with being a father after a divorce.

The same time File petition for quashing of FIR in High court.If possible try to settle the matter amicably.

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

1) Yes the police has right to ask custody of your son, because your wife/ father-in-law had given complaint in police station that boy is missing and the boy is with you. This all matter to go legally from missing till found and complaint or FIR closed. If they withdraw the complaint/ FIR than police will not force you for custody of child. See the action path, from where the action had come and where its reaction going to take place. Don't club two different scenarios in one direction. We know that the son is yours even police also knows son is yours, Then why don't police asked you custody of child before complaint? Think again..... Close one chapter than open another. The son will come in your custody any how....you have to prove it.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Respected sir ...

They had already got success in which they want ...sir they want child custody and might fill a petition under section 26 of HMA seeking custody of child and there complaint which they had maid will help court to grant child custody in there favor...sir right now just surrender to police along with your child and give child to police ..sir it will much better for you to take your child back through the legal procedure ...sir you can get child on merits but not in a way you want him ...your these act will make a gap in between you child and you when you will ask child custody from court ...just show your presence of mind and tackle-this situation will cool mind you will surely get success.....

Thank you

Dinesh Sharawat
Advocate, Delhi
1258 Answers
12 Consultations

4.9 on 5.0

Legally the police officer could not compel to surrender the child and he could not detained on that aspects.

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

1. Police has no authority of law to adjudicate a dispute of child custody, it can be done only by the court. It seems that cops have been bribed.

2. To restrain either police or your wife from illegally uprooting the child from you a suit for permanent injunction may be filed by you in the competent civil court. Act swiftly as it is a long drawn and more often than not a futile battle to recover the custody from the mother if she manages to uproot him from father,

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Once you obtain AB, even before police traps you, get the bail from the regular court through the help of the lawyer. Also, your lawyer should be able to tackle the police till you get favourable custody order.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Your wife's ailment i.e., schizophrenia is a good evidence if proved with medical records.

The police cannot compel you to handover the child.

Don't worry about the objection by the police for your bail application, let them give any report, your advocate should present his arguments in such a way that the court should be convinced.

What is the case that the police have registered?

You can file a petition before high court to revise the condition of bail owing to police atrocity.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

You have to approach court for solution that the police have registered false case by taking bribe and due to the same bribe they're pressurising you to produce the child and handover the same to its mother though this is not the condition of the grant of bail, hence you may be permitted to surrender before a magistrate court for execution of bail.

The court has to be convinced about this.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

Dear Sir,

You just file immediately child custody case and get interim custody of the child showing medical records of the wife. Be nice with police people and if they want hand over the child to them under acknowledgement and produce the same before the Court.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

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