• Child Custody

Sir - My husband has applied for divorce and won the exparte interim child custody in lower court. I have moved the child custody in the high court.  The high court 
has ordered to share the custody of the child for 3 days with me and 4 days with my husband which is interim in nature. After which the court has ordered 
us to consult the Physiatrist and the report is ready. I have also my and my son's physiological report submitted, but my husband did not undergo any evaluation.
 Child wants to be with both of us. The report is ready on Sep 2015 but still the case is not coming in the high court. I kept on asking the lawyer 
he says me some or other reason. I have put lot of effort in getting the report. The Lawyer is not getting me the report copy also. 
Now My lawyer says the evidence of the custody should be submitted in the lower court and memo to be signed in the lower court. I am not interested in running it in lower court as already the report is submitted in high court(plan of dragging the case). My son is now 5 years old
Why should i file a memo myself to take an evidence in high court when the case is pending in high court?
It seems like a plan to trap me back in lower court?
What is the validity of the report as already it is 6 months old?
What is the minimal period the case will be disposed in high court? 
What is procedure for changing the lawyer in high court?
I am earning single mother deserted by my husband and i am not claiming any maintenance.
I already i was denied justice in lower court so please guide me
Asked 10 months ago in Family Law from Chennai, Tamil Nadu
Religion: Hindu
1) if case is not appearing on board in HC your lawyer can apply to HC and seek directions to have case placed on board 

2) report would be valid even if it is 6 months old

3) disposal of case depends upon backlog of cases in HC 

4) no fixed time period can be mentioned 

5) you can ask your lawyer to give NOC as you want to engage anther lawyer 

6)if he refuses to give NOc you can apply to court in this regard that you want to engage another lawyer 

Ajay Sethi
Advocate, Mumbai
23308 Answers
1220 Consultations
5.0 on 5.0
1. Getting a copy of the report takes a long time due to the humongous backlog of cases in the court. The evidence can be led only in the lower court where the case has been filed and is pending and not the HC. You cannot circumvent the procedural law. Your case is still pending in the lower court whereas only the interim custody awarded to your husband by the court below has been challenged by you in the HC. You are making assumptions on the basis of your ignorance. 

2. There is no validity period of the report. Nobody can tell when the HC will decide the case/

3. Obtain NOC from your current lawyer to engage another lawyer.

4. Justice is a subjective term. What is justice for one party is injustice for his opponent.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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Lower courts are fact finding courts. So it is necessary do the trail in family court . Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child.  Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.

Children are fragile, handle them with care. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute

in the proceedings related to custody and visitation rights of the minor children, the interest and welfare as well as the desire and decision of the minor children is of paramount concern and should not be based on the ego satisfaction of the warring parents.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
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There is no minimum period prescribed to decide any case before high court. You should approach for early hearing and submit your report. File listing application for early hearing. Court can take cognizance of report it does not matter tnat it has 6 months validity. 

Keep some patient, if your lawyer can give NOC you can change him at any time.
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
What is the validity of the report as already it is 6 months old?
Why was the report kept pending for the past 6 months, the court on next hearing may insist on a fresh report too, however, since it is not your fault, you may convince the court about this. 



What is the minimal period the case will be disposed in high court? 
It depends on various factors including the advocate taking effort to push it through. 




What is procedure for changing the lawyer in high court?
You can submit an application before the court stating that you may be permitted to appear as party in person since you have terminated his services or can present before the court in your petition the actual reason that why you want to dis-engage the services of your advocate and may pray before court to permit you to engage another advocate without NOC from previous counsel.




I am earning single mother deserted by my husband and i am not claiming any maintenance.
I already i was denied justice in lower court so please guide me
The choice is yours, you can proceed with legal options that are available before you, nobody can compel you to abide by their decision.
T Kalaiselvan
Advocate, Vellore
14090 Answers
127 Consultations
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