• Child access

My wife filed a 498a, MC case in 2019 and in Feb 2022 GWOP asking for full custody to go and get new US passport for my 4 year old daughter.

She refused to join me when I left to US back in 2019, I recently came back to India and now planning to settle down here and fight the cases if needed if reconciliation does not work.

I am currently visiting my daughter at my in-laws house and spending time with her and she is completely bonded to me as well. The court has referred us to mediation in MC case and the 3rd session is on May 31st 2022.

My wife has threatened to take my daughter away to another city/town in June and not sure what exactly she will do, but I would like to prevent her from doing this and using either DVC or other provision to isolate my daughter from me.

Is there anything that I can do to prevent my wife taking my daughter away from the same town without my consent. 

Please advise.
Asked 2 years ago in Family Law
Religion: Hindu

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11 Answers

File a petition in GWOP seeking to restrain wife from taking the child out to the jurisdiction of Court. You can seek immediate custody of child on above apprehension. As per Section 6 of Hindu Minority and Guardianship Act, 1956, custody of child below five years will be with mother with visiting rights to father and custody after five years of age will be father with visiting rights to mother. Though this is general rule, this is not fixed law, in special circumstances child above 5 years especially when  the child is girl, custody is given to mother with visiting rights to father.  But mother has to establish such circumstances.

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

1) obtain court order restraining wife from taking the child to another city without your consent 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

In petition filed by wife seeking sole custody of child take out application restraining wife from taking child to another city without your consent 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

Need to file a custody case and in that file restraining application in the same,court will pass orders in the same

Prashant Nayak
Advocate, Mumbai
31802 Answers
175 Consultations

4.1 on 5.0

- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.

 - Further, under Hindu law, A mother usually gets custody of the minor child, under the age of five and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.

- The choice of a child above the age of nine is considered, and further a mother who is proven to neglect or ill-treat the child is not given custody.
- Hence for getting the custody of the daughter, you can file a petition in the Family court in India on the ground of her welfare , and also restrain her to take the daughter in another city without getting your consent. 

Mohammed Shahzad
Advocate, Delhi
13095 Answers
195 Consultations

5.0 on 5.0

File a petition under Order XXIX Ruel 1 & 2 Civil Procedure Code, 1908 read with Section 10 of Family Court Act expressing apprehensions that wife may remove child out to jurisdiction  of the Court defeat any decree or order passed by the Court.

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

You have to file Interim Application in Wife GWOP case praying to keep child in court Jurisdiction and child should not be taken out from Court Jurisdiction without court Order. 

Ankur Goel
Advocate, Bangalore
454 Answers

4.9 on 5.0

If your wife is threatening to take your daughter to some other town denying your access to the child especially during the pending litigation in this regard, it can be considered as an illegal act, however since she is the biological mother she can take the child that way.

But this will not prevent you from exercising your mite or strength to forcibly take your child to your palace and restrict your wife from visiting or taking the child let she give a complaint also before police, the police cannot interfere in this matter especially when the matter is pending before court.

Waiting for the court's decision in this regard may not be very effective or reliable because it will take a very long tome to get a decision from court, by that time it will be too late and your wife may proceed with her intentions to take away the child from you forever to abroad.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

In her GWOP case you can file an IA under order 39 rule 1 and 2 seeking restrain order against her decision to take away the child to a different place but that will not be  very effective because she may argue that she has been transferred to that place  hence the child remain with her until the court delivers final judgment in the pending case.

Therefore this petition may not be very effective.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Dear Sir,

You may file interim application seeking a restraint order against your wife from taking/shifting your daughter outside the jurisdiction of the present court. Thus, you will get such order after some resistance if not then you have to approach High Court and establish that with a malafide intention and to deprive you access to your daughter such action being taken by your wife.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

Dear Client, 

As per the facts which have been provided, obtain a court order restraining your wife to take your child in some other city without your permission.

Thank You.

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

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