If the case is dismissed then the interim order also stands vacated.
file an application for restoration of the case alongwith an application for restoration of interim order.
Regards
Who has the child custody right
My brother and his wife separated 2 1/2 yrs back not applied for divorce, she had left the kid with her father and she is staying in UK since last 2 yrs, when my brother asked from the kid custody they refused hence he filed case in the court (G&WC), and the court had given an interim order mentioning the kid stays with his grandfather for 5 day and rest 2 days (Sat & Sun) stays with is dad. this was happening since last 2 yrs and recently case was dismissed due to non attending of the court from both the party. as per our lawyer since the case is dismissed even the interim order too is dismissed and father has the right of kid custody. however as per the police since the case is dismissed, interim order holds good and he needs to send the kid back to his grandfather. 1 we are confused who is right 2 if this is not correct whom should we approach
Asked 5 years ago in Family Law
Religion: Hindu
14 Answers
on dismissal of case interim order stands dismissed
contention of police that grand father would have custody on dismissal of case is unsustainable
approach trial court for setting aside order of dismissal
The case is dismissed but interim order of the court still prevails increase father feels that in the custody of the child for is all round development and he is more than 5 years of age when he can apply for the custody of child and definitely I will be granted by the court
Dear Sir,
The version of the police are incorrect. The custody of child is confirmed as on the date of filing of petition under G and W. As such the father is having legal custody.
If any issue arise contempt may be filed in the same court against the grandfather and police or file fresh petition under G and W.
The case can be restored as it is dismissed for default. The interim order active or not depend on final dismissal order. You can file an appeal in HC and restore it
You can file restoration in the same court. And it can be restored by showing your previous conduct in the court. not a tough job as such. Take certified of all previous order sheets annexe them along with restoration application.
1. See if the case is dismissed the interim order get dismissed automatically.
2. Approach court revive case and get final order. Grand father can contest the matter subsequently that you didn't pursue and illegally took custody.
The natural guardian of a Hindu minor is in case of boy or unmarried daughter -the father, and after him the mother ; provided that the custody of a minor who had not completed the age of five years shall ordinary be with the mother.
After that welfare of minor becomes paramount consideration for either in appointment or declaration of any person as guardian of, or for taking custody of the child.
The welfare of a child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. It depends on the balancing of all these factors and determining what is the best for the child's total well being.
This is the position of law in this regard.
For taking custody of your child you can approach court based on above legal standings.
You can file application for for custody in family court before trial. Or a fresh application/suit if the case is already disposed of.
1) Once the interim order is passed that has to obey till final order is passed, here the case is dismissed on not attending court hearing. So one has to reopen the case or file new case for child custody.
2) As per the G&WC act custody should remain with father here your brother points should be strong and tell how he is going to take care of his child.
1. Your lawyer is right. Interim order stands vacated due to the dismissal of the case in default.
2. How did police assume a role in this case?
3. Your brother should apply for setting aside the ex parte decree.
As the main petition is dismissed therefore interim order stands vacated, However, something contrary is mentioned in the final order
Approach trial court to restore the proceedings
Police has nothing to do with the matter
Once the case is dismissed, the interim order does not hold and therefore your brother does not need to send the kid back. In fact, he should avoid to send the kid back under all circumstances as having the child in his custody for sometime would help in getting favourable orders later on. When there is no Court case or orders pending, the father cannot be restrained from meeting the child or keeping the child with him.
The police cannot interfere in this matter.
Once the case is dismissed all the pending applications are disposed therein, including all interim orders thereto.
If the child is under your custody, dont send it back to its grandparents.
If they want relief let them approach court.
The order was passed in the case and the case is now dismissed so now the order also goes with it. File a recall application for restoration of the case and the interim order.
Regards
If you don't want to restore the case the the status quo ante shall be restored or you can forcibly take the kid back too..
