• Sheer negligence that led to death of wife and mental torture

My sister(36 yrs old) passed away on the 22nd of May, 2015. The cause of her death was due to utter negligence of her husband. She was totally bedridden for the past 7 days and was left unattended at home. My father had been repeatedly telling her husband to take her to the nearest hospital as he could feel that her condition was worsening. Her phone was out-of-order and the only way to reach her was on her husband's mobile. Most of the time he would not return our calls or hang-up abruptly. When we sensed that he's not taking any action my parents decided to travel to her place from Kolkata. But before they could reach she passed away. Only after my father literally cried and begged him he decided to take her to the clinic. When she was taken to the hospital the doctor declared as "brought dead". He said that sodium-potassium level was very low in her body. She was staying with her husband and her 6yr daughter only. Ever since she gave birth to a girl child she was mentally tortured by her husband and mother-in-law. All major responsibilities of the child were being take-up by my sister. My sister was a university topper(M.A. in English) and worked as a teacher for D.P.S. Rourkela. She was one of the best teachers in town. Somehow her popularity did not go down well with her in laws. She was a very strong woman but coyuldn't leave her husband beacuse she understood the importance of both mother and fatehr in a child's life. She's was married to him for 7 yrs only.

During her sickness he used to go outside and have his meals without feeding his wife/daughter( as told by my niece). 

Now coming to the child, she's been staying with my parents in Kolkata since May 2015. She knows very well of her father's negligence and she was the only witness of her mother's ailment. He father has authorised my parents to be her guardian as she's studying now in D.P.S. Kolkata.

She's very close to our family. Her grandparents from the paternal side do not even inquire about her well-being. Her father sends 3000/- per month for her school fees which is not even the total fees we pay per month. Every year the school demands 11000/- at the beginning of he session which is being paid by my father who's a retired SAIL officer.

My husband and I are software engineers and currently live in U.S.A. We want legal custody of the child and file a case against him. We had lodged a complaint when the incident happened. But he started threatening us that he would take back my niece. My father had to withdraw the complaint as we did not want the child to be in such unsafe hands at any cost. Even the post mortem report doesn't have the reason for death. My father has been fighting for the Forensic report since them but we still do not have information on that. WE STILL DO NOT KNOW THE ACTUAL CAUSE OF HER DEATH.


Please advise.
Asked 7 years ago in Family Law
Religion: Hindu

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7 Answers

You should not have taken back the criminal complaint. Anyway what is done is done.

I believe you are more interested in the present and future of your niece than the previous complaint. Now that she is five years old and her father has anyway legally given you proper custody of the child you can easily seek maintenance for her without jeopardising the custody.

But this issue involves a lot of technicalities and all the paper work of custody has to be handled sensitively. In my opinion you better take the authorisation issued by the father to a lawyer and consult in person. You must also seek opportunities to revive the criminal complaint if you can as that will add to your claim of custody of the child instead of the father.

In fact retrieval of the forensic report might aid your attempt of reviving the complaint. But how can you be so sure that the body was sent for forensic investigation? if it was then you need to write a letter to the center for such report, failing which you must send a legal notice and file a criminal complaint against the center pressurising them to publish the report.

Saptarshi Banerjee
Advocate, Kolkata
220 Answers
6 Consultations

4.5 on 5.0

1.Considering the actions of father of the child so far it is advisable that your parents take take the recourse to law as far as custody of their grand child is concerned.

2. So they now file a custody suit seeking injunction from court that the physical custody of the child may not be taken away without the order of court.

3. Seeking injunction is very much essential so her custody may not be forcefully taken away by her father.

4. In the meantime file case u/s 156(3) crpc to reopen the criminal case. it is permissible.

5. Since the case is likely to be filed in Kolkata you may feel free to contact to contact me at [deleted] for filing the case.

All the best.

Devajyoti Barman
Advocate, Kolkata
22774 Answers
484 Consultations

5.0 on 5.0

1) your parents can make application and seek custody of their grand daughterasthey have been taking care of the child

2) they can also seek maintenance for child from father

3) since you are in USA you may not be granted child custody

4) you are at liberty to peursue the copmplaint against father of child .

5) rely upon child testimony that his negligence caused the mother death

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

if no mutual agreement is possible for custody of child thern apply to court for child custody

2) welfare of child is paramaount consideration .Section 13 of the HMGA declares that, in

deciding the guardianship of a Hindu minor, the welfare of the minor shall be the ‘paramount consideration’ and

that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for

the ‘welfare’ of the minor.

3) revival of complaint after period of 2 years would be difficult

4) if any charges have to be pressed against the biological father do it now

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

You can adopt the child with approval of the father as per adoption procedure.

2. Once legal adoption is done,and you return to India you may open the case and in case their marriage was less than 7 yrs then onus to prove his innocence will lie on your brother in law , else you have to gather evidence to show his crime /negligence to award punishment.

Sushil Jha
Advocate, Patna
283 Answers
5 Consultations

5.0 on 5.0

1. It will be prudent on your part to first negotiate with your brother in law and take his daughter in your adoption with his consent. since you were seeking her custody.

2. Once the adoption deed is registered, he can not claim her back from you.

3. After that you can file a writ petition before the local High Court against police inaction praying for an order to investigate and take action against the culprits for the abnormal death caused to your sister.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. Not only negligence. You should allege for intentionally causing her death for getting remarried for dowry or for having run an affair.

2. The above allegation is required to claim custody of your niece on the ground of her welfare since as otherwise, your parents have no legal right to claim her custody when her father is alive and claiming her custody.

3. You shall have to allege and prove that because of bearing a female child, your sister was tortured and also left to die without treatment.

4. Once you put the said allegation and the case starts, you can seek interim stay on his custody till disposal of the case.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

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