• Custody of 4 years child under xxxix rule 1&2 r/w section 94(c) &

My husband has got a temporary custody of her 4 years old son by snatching away the child. He  has got exparte order calndestinely under XXXIX RULE 1&2 R/W SECTION 94(C) & 151 CPC. Because of this order the police complaint lodged by me got closed. He got the the order in 3 days. Is it how people get temporary custody and is the above mentioned section is valid to get the child custody?
Asked 1 year ago in Family Law from Chennai, Tamil Nadu
Religion: Hindu
1) it is temporary order passed . under Order XXXIX of CPC

2) court must have granted another date to enable you to file your reply 

3) make application to court for setting aside impugned order as no notice was issued to you 

4) it is necessary to peruse order passed by court for further advice 
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
1. What is the date on which the custody was awarded by the court? There is a clandestine element which every person is entitled to maintain while initiating a legal proceeding. You do not have to warn the other person about the proceedings which you are going to set in motion. Rather, legal prudence requires that you maintain secrecy while commencing a legal proceeding so that the other person can be caught by a surprise and also possibly unprepared to mitigate the adverse consequences emanating from the judicial order. This is precisely what your husband has done.

2. Now the legal recourse available to you is to challenge in a higher court the custody awarded to your husband. The higher court can restore the custody to you.

3. You can pursue the matter right up to the Supreme Court of India.

4. You will be given full opportunity in the court to claim the custody of your child.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Hi, it is only a interim order passed by the court, the court has power to pass interim order.

2. Contest the case on merits engaging the services of the advocate and file an application for vacating the stay order.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
It is advisable that you challenge the temporary custody order granted to your husband by the court in the higher court. The section is valid to get the child custody. Kindly share the custody order passed by the court for further advice.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. Did you not get the summons to attend the Court? How did he get the ex0parte order?

2. File an appleal before the higher court challenging the order of the lower court,

3. Engage a local lawyer having expertise in the field.

Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1. Any order of the lower court can be challenged in a higher court. You are free to move the higher court which can annul the order and restore the custody to you. Thereafter the case would proceed in the lower court. 

2. Since the order has been passed by the court it will not recall it. Only the higher court may annul it. 

3. You can retain the custody of your son as long as he remains a minor. The courts do not consider the decision of the child unless the child is about 10 years old or thereabout.

4. The section is appropriate. 
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1) custody of minor child is generally awarded to mother . 

2) father generally gets visitation rights 

3) your husband has made application under Order XXXIX   Rule 1 and 2 and sought interim reliefs which have been granted . 

4) you can file your reply and seek vacation of stay order 
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
Section 94 CPC enjoins -

"Supplemental proceedings. -In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show- cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient."

Therefore, under this Section contemplated the power to issue warrant against the defendant to compel him to give security, to commit to civil prison, to direct to furnish security, to grant temporary injunction, in case of disobedience to commit the person to civil prison and attach and sell his property and to appoint receiver and/or to make such other interlocutory order as may appear to the Court to be just and convenient.
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
1. You have not mentioned whether you had received the summons to attend the hearing or not,

2. How has he got the custody of the 4 years old child without you being heard? You are not clear in this regard,

3. High Court is approached challenging lower courts order. In the case also you can approach the High court,

4. Wait till the next week and in case you do not get relief, file an appeal before the High court,

5. You can claim maintenance for your son,

6. You can hold the custody of your son atleast till he is 5 years old. After that the Court has to decide about the custody keeping in mind that welfare of the child is of paramount importance. 
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1) courts generally insist on notice being served on the defendant before granting any ad interim reliefs 

2) since false statement was made by your husband and he has obtained order by material suppression of facts stay would be vacated . 

3) litigant who does not come to court with clean hands is not entitled to any reliefs 
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
 The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In Dalglish v. Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B. observed:
“It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward.

The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands – Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114.
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
1. His petition as per GWOP is required to be seen to understand how did he convince the Court about the importance of the matter since he had applied under order 39 Rule 1 & 2 or CPC,

2. It seems that he has completely mislead the Court duly convincing the Court that you will illegally snatch his child,

3. You are advised not to miss the opportunity to expose his said trick and get the said interim injunction vacated and also take your son into your custody.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
Court may direct that ad interim reliefs granted in terms of prayer clause stands vacated and pending hearing and final disposal of petition custody be given to mother . Father would have visitation rights
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
1. This is the reason  mentioned "His petition as per GWOP is required to be seen to understand how did he convince the Court about the importance of the matter",

2. It is also required to see what have you mentioned in your petition to vacate the interim injunction,

3. You should have also prayed that your child should be returned to you,

4. If he bdoes not return you your child, you persue the complaint you have filed against the police,

5. You can file  a Writ Petition for police inaction before the local High Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
1. Since you have already moved the court to recall the order of interim injunction you cannot move the higher court.

2. You have to draw the attention of the court to the fact that he has misled the court. 

3. There are abundant provisions in the law to grant custody on the same day without hearing the other party.


Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

1. The court can effectively recall the order which it has passed, which would revive the parties to the position they were in prior to the custody order which has been passed. The court can order him to deliver the custody to you on the same day as it did when it gave the custody to him.

2. Police has no role to play in this case.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14006 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23230 Answers
1219 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5196 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3533 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
434 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0