• 5 year kid taken illegally from wife by husband and his family

Hi, this one for my sister, she were facing alot of trouble from husband and his family few months ago.. So she came 10 days back to our home with his 5year. Old child.. Because her husband fought with her and said to get out of home... When I spoke with him he said same to me..
But today morning he and his dad came and took child without my sisters permission... So what we can do..?

Is there way to get complaint or any smooth proceedings there?
Asked 10 days ago in Family Law from Salem, Tamil Nadu
Religion: Hindu

Your sister must move family court to plead for guardianship and custody

Netra Mohanchandra Pant
Advocate, Navi Mumbai
752 Answers
1 Consultation

4.4 on 5.0

File a case for custody alongwith domestic violence case

Aveek Bose
Advocate, Kolkata
807 Answers
4 Consultations

4.7 on 5.0

See your sister can file a FIR with police stating that husband came abused her and her parents , started shouting and beating and forcefully took the child with him.

On complaint with police the police will call them if on that they are ready to mend there ways and return child custody back then your sister can withdraw complaint and can give chance marriage and if not she can proceed with FIR and for custody of child she has to file a child custody petition.

 

Shubham Jhajharia
Advocate, Ahmedabad
15323 Answers
63 Consultations

5.0 on 5.0

1. Rush to the police station and lode a case of kidnapping.

2. Since the child was staying with your sister taking the child forcefully without her consent amounts to kidnapping and this offence is applicable even to a parent.

3. Since time is short registration of FIR at the earliest is necessary to recover the child.

4. Bring the proof that child was with his mother since her separation. 

5. If local police does not take action then meet higher officials of police.

Devajyoti Barman
Advocate, Kolkata
16485 Answers
231 Consultations

5.0 on 5.0

file a criminal complaint against them before police.

Also file a petition before family court for child custody under Guardian & Wards act

 

your sister may file a criminal case under section 12 of Protection of women from Domestic Violence Act-2005 read with section 18,20&21 for protection, monetary relief and child custody. 

Nadeem Qureshi
Advocate, New Delhi
5245 Answers
251 Consultations

4.9 on 5.0

How come you permitted him to take a child, should have protested and called the police. File police complaint of domestic violence, dowry demand and abduction of child. 

Yogendra Singh Rajawat
Advocate, Jaipur
9806 Answers
8 Consultations

4.6 on 5.0

You can file a formal complaint to police.  You can move custody petition in court for custodybor visitation of that child

Prashant Nayak
Advocate, Mumbai
8314 Answers
11 Consultations

4.8 on 5.0

Your sister may have to file a case for custody of the child.

Rajashekar
Advocate, Bengaluru
559 Answers
2 Consultations

4.8 on 5.0

wife should file police complaint against husband if child has been forcibly taken by the father and in laws 

 

2) if police do not take any action file complaint before commissioner of police 

 

3)she can go to her husband place as it is her matrimonial home 

 

4) file DV case against husband ,in laws seek right to stay in your matrimonial home , maintenance , compensation for mental torture undergone by her, custody of child 

Ajay Sethi
Advocate, Mumbai
61328 Answers
3722 Consultations

5.0 on 5.0

Dear Sir,

As per law if the child's age is less than 5 years, the mother can claim for physical custody and father can have a visitation rights.

But after the child has crossed the age of 5 years, the physical custody and upbring of the child will be considered by the court. So, if the child is in taken away by your husband then you can file a case under Guardian and Wards Act seeking custody of the child if your husband denies you for the same. 

Child custody and maintenance law are based on the principle of best welfare of the child, the parent with whom best welfare of the child exists is allowed the physical custody and other parent is given visitation rights for the child. The issue of child custody is up to the age of majority which is 18 years. The financial support of the child is responsibility of both parents and both are supposed to provide for it in proportion of their own income or financial status.

Since the child is infant the custody will be with mother, unless proven that she is not able to take care of the child. The custody will go to mother irrespective of who files for divorce. You will get visiting rights. Once the child is of 7yrs you can again file child custody petition and battle it out. Also there can be various possibility which a lawyer would be able to guide you the best.

Netravathi Kalaskar
Advocate, Bangalore
2447 Answers
6 Consultations

5.0 on 5.0

Yes, you have file complaints against them and get the child custody rights from court.

Ganesh Kadam
Advocate, Pune
6426 Answers
47 Consultations

4.9 on 5.0

You should immediately file a complaint to the police for the offence of kidnapping against your husband and all other persons who came to your house and abducted your child without your consent from your house. 

If police failed to register your complaint or refise to register FIR, you should forward the same to the senior officials of police under section 154 (3) of the CRPC.

 

Siddharth Jain
Advocate, New Delhi
3849 Answers
42 Consultations

5.0 on 5.0

In the interests of the child it is better if issues are sorted out between your sister and her husband on the principle of give-and-take. Otherwise, your sister has to file a police complaint against her husband on the grounds of domestic violence and taking away the child illegally from your sister's custody.

Swaminathan Neelakantan
Advocate, Coimbatore
415 Answers
2 Consultations

4.9 on 5.0

Hello Ma'am,

Please be advised as follows:

Under the Hindu Minority and Guardianship Act, 1956 under Section 5 mother is considered to be  a natural guardian of the child who is below 5 years of Age. Therefore it is important to know the exact age of  the child.

Nonetheless, even the father or anyone from his family can randomly trespass your property and leave away with your child through such kind of forcible possession.

Remedy:

1. First try to reach at an amicable settlement if your husband  agrees to stay with you with your child.

2. If there is any other issue regarding domestic violence or anything your sister can report the same to police or file a case under section 498A against your husband. 

3. You can file a writ of Habeas Corpus in he court for illegal detention of your child. 

In Roxann Sharma Vs. Arun Sharma, 2014 the Supreme Court stated:

The Hindu Minority and Guardianship 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 jeopardised if the custody retained by the mother.

Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person IF the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G & W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.

Please revert in case of any query.

Thank you for your time and Consideration. 


Presently,

You can file an FIR under Section 154 of the Criminal Procedure Code at this instant. 

Moreover, while reporting the case to police you can report of the following offenses:

1. Criminal Trespass under section 441 of Indian Penal Code. Punishment - imprisonment upto 3 months or fine or both

2. House Trespass under Section 442 of the Indian Penal Code. - Imprisonment upto 1 year or fine or both.

3. Housebreaking under Section 445 of Indian Penal Code.

Please revert in case of any query.

Thank you for your time and Consideration. 

Harshit Singh Jadoun
Advocate, Noida
65 Answers

5.0 on 5.0

As per law if the child's age is less than 5 years, the mother can claim for physical custody and father can have a visitation rights. But after the child has crossed the age of 5 years, the physical custody and up bring of the child will be considered by the court. So, if the child is in husband’s custody then your sister can file a case under Guardian and Wards Act seeking custody of the child. 

Mohammed Mujeeb
Advocate, Hyderabad
7081 Answers
3 Consultations

4.5 on 5.0

Dear client 

Your sister have to file a complaint of cruelty and illegal abduction of her child by her In-laws in the women police station.

If they still doesn't responds to complaint then your sister have to file a petition under section 97 CrPC for Search for persons wrongfully confined in the court of SDM for production of child in front of SDM he will order police to get the child and the persons(in-laws) produced before the court ASAP. and give custody of child to your sister. 

Mohit Kapoor
Advocate, Rohtak
556 Answers

5.0 on 5.0

As per your statements it is evident that the original custody of the child was with the mother. However after 10 days the father took away the child in absence of the Mother without her permission, this amounts to illegal act of forcibly taking custody of the child from the mother. 

You can approach the court and pray that the custody of child be restored to the mother and he can claim his rights as per the procedure of the law. 

Sayyed Parvez
Advocate, Navi Mumbai
19 Answers
3 Consultations

4.9 on 5.0

Since the child belongs to both, your sister cannot give a complaint with the police about kidnapping offence too.

However she can file a child custody case before the court and ask her interim custody also in an IA in the same petition.

Alternately you may arrange for a reconciliation or a meeting with elders of the family to resolve the issue.

T Kalaiselvan
Advocate, Vellore
51451 Answers
612 Consultations

5.0 on 5.0

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