• Custody of Son permanent and temperory. Can wife take my son under section CRPC 97.

Hello All,

I had the marriage 8 year back in Delhi. My wife is from Bikaner. We have two kids. One is 7 Years and other is 3 1/2 years old. on 28th of Feb we had a fight. She left the house with my both kids. I went to hospital one of my son who loves me very much comes with me. MLC report comes with simple injury. She went to Bikaner with her parents.Filed the case on me under section 498A, 377, 406, 323. 5 name in FIR including my mother, sister, brother, chachi. Now:
1. Now can these cases will transfer in delhi.
2. Can wife take the force full custody of my 7 years old son under crpc 97
3. Later can i have his full legal custody.
4. Do I need the anti cepetary bail.
5. What should I do so that all the name except will come out from FIR.
6. Do I need to file the reply of FIR in Mahila Thana.
7. Do I need lawyer at this point of time.
Asked 2 months ago in Family Law from Delhi, Delhi
Religion: Hindu

1) you have to file petition in SC fir transfer of case to Delhi 

 

2) you can file application seeking sole custody of your children 

 

3) you can apply for anticipatory bail  in session court 

 

4) engage a local lawyer 

 

5) poluce would issue you notice to record your statement 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

NO.

NO.

For full legal custody, have to obtain order from court.

Apply for AB, for unnatural sex charge, police can arrest you,

Have to file quash petition in HC, Jodhpur.

NO reply. Police will call you to submit your version of innocence.

 

 

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

1. Since case u/s 498A IPC can be filed in parental home as well, this case is difficult to be transferred to Delhi unless all the allegation alleged in the FIR has happened in Delhi only.

2. No

3. For this file suit for custody of the child.

4. Yes , apply for it asap. The charges of section 377 CRpc is not more applicable.

5. File quashing petition preferably after submission of charge sheet.

6. No

7. Not compulsory.

Devajyoti Barman
Advocate, Kolkata
19515 Answers
277 Consultations

5.0 on 5.0

1.You can challenge the jurisdiction and seek transfer of the same

2.No. You can file for custody and contest the same

3.Yes

4. Yes

5You need to go for quashing before HC

6. You can but not compulsory

7. Yes

 

 

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

If the children of below 7 years of age were forcibly taken away from the custody of mother by the father, the court can issue warrant under Section 97 of the Cr.P.C. for search of children and also hand over the custody of children to the mother if found suitable.

claiming custody would depend on the facts in detail, that apply to your case, which can only be given final effect by a court of law..

If fir is Lodged then apply for Anticipatory.

You can file for quashing of FIR.

Immediately hire criminal lawyer.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

First of all you should engage one lawyer if you are nor well aware of criminal laws 

Cases can not transferred without order of high court/SC to orher district or state.

With out custody order child above 5 years is supposed to stay with you.Make a complaint under crpc 97.

Arrest occurs in rare cases. You can take regular bail if arrest is made. Anticipatory bail may not be required. Though you can apply for it.

Name can not be excluded from FIR unless court direct so.

Defend your case. No other options.

Kallol Majumdar
Advocate, Kolkata
2507 Answers
4 Consultations

5.0 on 5.0

1. She can file the said case in Bikanir. Supreme Court will not allow your prtition for transfer of the case to delhi if filed by you.

 

2. You have not wrongfully confined your son of 7 years old for which section 97 of Cr.P.C. is not attracted herein though she might try to apply the said section to take custody of your said child.

 

3. You shall have to file a child custody case claiming full custody of your said child.

 

4. You shall have to take AB from the Sessions Court at Bikanir or High Court at Jaipur or from Supreme Court.

 

5. All the accused shall have to take AB first and thereafter all of them excepting you shall have to file a petition praying forn deleting their names from the list of the accused.

 

6. Anticipatory bail is required to be taken against FIR registered.  Your statement will be recorded by the trial court.

 

7. You certainly require a lawyer to get you the anticipatory bail first and then contest the case fittingly.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

Dear Sir,

It is desirable you should have a lawyer right fro the beginning to properly guide the case. Custody normally for below 12 years goes to mother. Case normally continues in place of residence of lady but cause of action is also seen.Anticipatory bail is seeked in anticipation of arrest

Anand Shukla
Advocate, Delhi
566 Answers
13 Consultations

4.9 on 5.0

Criminal cases cannot be transferred to Delhi. 

She cannot take custody unless she files a case in Delhi for it. As she already has a child she would have to show good reason in order to obtain custody of the 2nd child.

File an application for anticipatory bail for all your relatives.

Yes engage a lawyer.

Also file a domestic violence case against her through your mother.

Rahul Mishra
Advocate, Lucknow
7931 Answers
15 Consultations

5.0 on 5.0

1.  The criminal cases cannot be transferred to another state until and unless it is very special circumstance and it is rare of the rarest.

If it appears to Supreme Court that an order made under this section is expedient to meet the ends of justice then it may direct such case to be transferred from one High Court to another High Court or from one Criminal Court to another which is subordinate or of equal jurisdiction.

Section 406 Cr.p.c. : The Supreme Court can act under this section only on an application provided by the Attorney-General of India or Advocate General of State and it should be supported by an affidavit or affirmation.

 

2. She can take away the child or even you can take away the child, the dispute that who will have the child will depend on  the decision by court after either of you are filing a child custody case.

3. You can file a child custody case.

4. Yes, in the event of the FIR registered against you, you may better obtain AB. 

5. You can file a quash petition before high court to remove their names.

6. No, they will obtain your statement during investigation process.

7. It would be better that you take the assistance of a lawyer.

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

1.  In your case in case your wife applies then only it may be transfered in your facts it's rare court shall allow any transfer.

2. Child is not wrongfully confined she can file for custody petition not criminal case.

3. You can file for custody of your child.

4. Yes since FIR is filed you should obtain an anticipatory bail.

5. Other accused can approach the high court of rajasthan for quashing.

6. No there is no reply to a FIR.

7. For anticipatory bail yes you need a lawyer.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

Dear Sir,

Yes, First file a anticipatory bail for all the family members and then you can file quash petition when there is a false complaint filed in FIR. If the complaint is false then case will not stand for long time.

You can transfer the cases to Delhi

Transfer of cases relating to Matrimonial Disputes from a court situated in a particular state to a court situated in another state, can only be done by the way of Transfer Petition which may be filed by either party to the case before Hon'ble Supreme Court of India.

You can get custody of your son by filing custody petition in the family court.

The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death, the custody shall be given to the mother

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 on 5.0

1) In order to get them transferred to Delhi, you need to file application in Supreme Court.  

2) No.

3) You can file application for permanent custody of child.

4) Obtain AB it is must.

5) Engage local lawyer to contest the cases filed by her.  Get the FIR quashed against other Accused.

 

S Srinivasa Prasad
Advocate, Hyderabad
1867 Answers
7 Consultations

5.0 on 5.0

Hi,

Please find below answers:-

 

1. Now can these cases will transfer in delhi. (Under Indian Legal System,this liberty is given to women to contest the case as per her residential status)

2. Can wife take the force full custody of my 7 years old son under crpc 97 (Being mother she can have the custody of child until court decides the final verdict on legal right)

3. Later can i have his full legal custody. (Yes, you have all the right to contest the matter)

4. Do I need the anti cepetary bail. (Yes, You must immidiately apply for AB, considering section 377 into FIR)

5. What should I do so that all the name except will come out from FIR. (Only way to contest the matter and prove not-guilty in the court)

6. Do I need to file the reply of FIR in Mahila Thana. (Though FIR is filed, now you shall be summoned to join investigation)

7. Do I need lawyer at this point of time.(Advisable to keep a regular connect with any local lawyer who would advise you before taking any step towards your matter)

Regards

Vivek Arya

Vivek Arya
Advocate, Gurgaon
682 Answers
4 Consultations

5.0 on 5.0

1) you need to file petition in SC for transfer of case 

 

2) no need to Surender custody of your son 

 

3) quashing is to be done only in exceptional circumstances 

 

4) HC is reluctant to quash FIR pending completion of investigations 

 

5) burden of proof is upon prosecution to prove allegations beyond reasonable doubt 

 

6) you can file for divorce in Delhi also seek sole custody of your child 

Ajay Sethi
Advocate, Mumbai
74388 Answers
4450 Consultations

5.0 on 5.0

You can file quashing application to HC. The custody case will never filed where the child and wife used to reside within you.Yes you can file DV case

Prashant Nayak
Advocate, Mumbai
18517 Answers
34 Consultations

4.6 on 5.0

1. No you are biological parent and they cannot force you. They need court order.

2. You can apply before SC though in criminal.cases investigation and case may not be transferred though you should try.

3. File quashing before HC and seek stay.

4. Yes you can file it before high court.

5. Yes you can apply for.custody of your children and can get interim order so that police does not force you.

6. Yes you may file same in delhi as child is currently in delhi.

7. Yes you can file divorce in delhi.

8. In divorce proceeding court may order mediation.

9. Yes your mother can file DV case against your wife before magistrate.

Shubham Jhajharia
Advocate, Ahmedabad
24271 Answers
96 Consultations

5.0 on 5.0

1. The police or her lawyer cannot issue such threats.

What is your lawyer doing than to counter such threats posed by them.

You can issue a legal notice to the concerned police to refrain from indulging in such illegal activities, if at all they want relief, let them approach court instead of indulging in such illegal acts, or else, you can warn them that you will approach human rights commission against the police as well as the lawyer for their excesses.

2. As I had expressed that you cannot transfer the criminal case to other state except under extra ordinary circumstances, you may take proper legal action as per law instead of getting scared by such acts of cowardice.

3. That depends on how you challenge her in the trial proceedings.

4. Yes, you can file an application before high court to remove the names of the relatives from FIR.

5. See the answer to point 3 above.

6. Yes, you can file it.

7. If the place of marriage or the place where you both last resided was in Delhi then you can file divorce case in Delhi.

8. If yes to the above answer.

9. Your mother can file DV case against her and not you.

 

T Kalaiselvan
Advocate, Vellore
64348 Answers
834 Consultations

5.0 on 5.0

Better file custody application in court and obtain stay from court.

Case will not transfer.

Quash petition will file in HC.

Until you will not file petition in court for absolute child custody, how will you win ? File in Delhi.

Yes.

Meditation is done where divorce will file. 

Your mother can file DV case.

Yogendra Singh Rajawat
Advocate, Jaipur
18433 Answers
22 Consultations

4.6 on 5.0

As a father you have custody rights don't surrender until unless court order.

You can file transfer petition in SC.

Depending upon evidence.

You can file quash petition in HC.

You can file Divorce petition in delhi.

Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in delhi. Mother is living in biakner along with minor child. If father wants to file Child Custody, he has to file the same only in Bikaner.

Mohammed Mujeeb
Advocate, Hyderabad
15449 Answers
7 Consultations

4.5 on 5.0

File a private complaint before magistrate seeking directions to police not interfere in custody matter of child.

Transferring case to Delhi would be difficult for you. 

Custody of child is determined taking into consideration of welfare of child. So focus on that point while preparing the petition and further arguments in court. 

You can file divorce case in Delhi. File it earlier. If your wife file it at her place earlier then if you file later your case will automatically be transferred to your wife's place. 

You mother can file DV case. 

Kallol Majumdar
Advocate, Kolkata
2507 Answers
4 Consultations

5.0 on 5.0

Please do not yield to their pressure tactics.  Even if they are influential, merits of case will be taken into consideration.

You need to file in SC for transfer of case filed by her.

You can file divorce case where both of you last lived  and also application for permanent custody of child, chances are you will most likely get the custody.  Train / fine tune his mind so that, when counselling is done he will speak in your favour and intends to stay with you (Filing can be done in Delhi).

In all probability she can file transfer petition to transfer the case to her place.

You mother can file DV case, make sure to support the case, substantial proofs are with you.

 

S Srinivasa Prasad
Advocate, Hyderabad
1867 Answers
7 Consultations

5.0 on 5.0

1. File a child custody application immediately to avoid any such problem.

 

2. It is no ground for transferring the case to Delhi as has been explained in my earlier post.

 

3. Winning of case depends on how you contest it.

 

4. Quash petition is ordinarily entertained by the High Court after charge sheet id filed by the I.O. of Police. So, you shall have to wait till then.

 

5. Father is the natural guardian of his child who is more than 5 years old. In this case welfare of the child will be considered while deciding about the custody. Your child's preference also will be considered while deciding on the matter.

 

6. Yes, you can file the said child custody cad in Delhi.

 

7. You can file the divorce suit in Delhi.

 

8. In case of divorce suit, wheresoever filed, mediation will be attempted by the Court first.

 

9. Your mother can file a DV case before the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
24025 Answers
659 Consultations

5.0 on 5.0

They can't do anything. They are just threatening you. File a case in rajasthan high court for fir quashing and anticipatory bail.

File a divorce petition in Delhi before she files in rajasthan.

File a case for domestic violence through your mother.

Rahul Mishra
Advocate, Lucknow
7931 Answers
15 Consultations

5.0 on 5.0

Dear Sir,

Yes, you can file child custody case, divorce case in Delhi.  and also your mother can file DV case against your wife in Delhi.

Netravathi Kalaskar
Advocate, Bangalore
4953 Answers
25 Consultations

4.8 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