Hi all, I need urgent help in getting child custody from my father in law and mother in law.I state here with current situation- -My wife and me had a small dispute in US(No conviction.It was a small dispute) -She brought my son (Current age 4.5 years) to Pune without my consent. -She filed divorce and went to US in Feb 2014 -She kept our son in pune with her father and mother -I filed section 26 interim application to get the custody of the child in divorce -In reply to that application in writing she mentioned child is in US and she is taking care of the child. -Truth came out when she filed name change application in US that child is in pune only. -Now currently our son is living with my father in law and mother in law since June 2014,I came to know truth 3 days back that our son is in pune only. -In that name change application she mentioned that her parents will bring child back to US on 1st week of May 2015. -I have now 1 week left to get my son with me in Gujarat. -There are no where court orders that father in law or mother or anyone hold custody of the child. -Mother of child in in US currently - AS per my knowledge i have 3 options left now.Which is the best option? a)Going to my in laws house and take my son to my native place making sure my son is safe and secure.csn kidnapping case filed on the father? b)Section 97 -(Scope is very limited in it) c)shall i do Habius Corpus in guj high court or Mumbai high Court? d)Or please suggest any other option I cant do anything through family court as next hearing date is after 2 months and is very slow. Please give me any suggestions which can help me in getting my son before 10th may with me. Today - 25/04/2015
1. If you go to your in laws place and take your son away forcibly then your claim to child custody will stand on very feeble legs in the court. This may be a short term gain but will bring a long term loss in as much as the court may refuse to give you the custody altogether.
2. How does section 97 come in play here if I may know?
3. What you should immediately do is exercise the third option and move the Gujarat High Court for the custody of your child.
1. Though the parents can also be charged with offence of kidnapping , since the child is not in custody of her mother you can take that risk and take the child to US. Let her fight for his custody in US. Since she has lied about his whereabouts it will be difficult for her to get the custody.
2. Since you have filed custody suit no case for HC lies.
1) your interim application for child custody is pending in pune court
2) you have as father full right to visit the child in pune .if in laws deny you access then visit nearest police station that as father you are being denied visitation rights
3) taking child forcibly is not advisable from in laws house
4) you an file habeas corpus petition in HC if you so desire for production of child
mother is the natural guardian of child up to the age of 5 years thereafter father becomes the natural guardian till 18 years of age according to section 6 of Hindu Minority and Guardianship Act, 1956
you should file application under section 6 for care and guardianship of child because his mother is in USA and committing negligence in his care. you may take plea that if his guardianship is not transferred to you then your child will leave India and remain out of the jurisdiction of the court. According to order 14 of cpc, court is bound to decide this issue expeditiously
a) to c) any case on behalf of you in this regards does not lie which may lead to time and money loss. Since your son is minor then custody may in favour of your wife.
d) you can file a petition in divorce suit for custody of child for the welfare of your child or you can file a separate suit under Wards and Guardian Act in District Judges Court.
1. Lodge a police complaint before the Pune police against your parents in law for illegally holding your son without your wish,
2. File Habeas Corpus Application before the Mumbai High Court.
