Separation, Child custody
1 year ago
I am a female, residing with my son aged 11 years in USA since last 6 years. My husband moved back to India around 4 months back due to visa issues but intends to be back to US after an year. We have had compatability issues since the beginning of our marriage and he was physically abusive sometimes and emotionally and mentally abusive on a daily basis. He is absent minded and suffers from depression, gets offended for silly matters and is not socially outgoing. No, my kid and I are coming for a visit to India for 4 weeks. I think he is spreading rumours about me about my character because I am not physically attracted to him. I am worried he might create a problem and not let my kid travel back. What action can I take legally if he doesn't let my kid travel with me? He mentioned several times that he cannot take care of my kid alone, he will ask his mom to help him. My kid is H4 dependent on me and is not at all interested to stay with his dad alone without me as he is more attached with me. Also, He has not been supporting financially since he left US, so I have been taking care of all the expenses for my kid and I. Can he legally stop my kid to return with me to US legally?
You may file child custody case and get interim order on the basis of the following principles.
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Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
CHILD RIGHTS COMMISSION ACT 2006
http://www.kscpcr.com/eng_ver/actsandrules.php
The Karnataka State Commission for Protection of Child Rights (KSCPCR)
4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE
NRUPATHUNGA ROAD, BANGALORE-
Such Commissions are situated in Every State
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Bombay High Court
Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016
Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 84 OF 2013
Forum for Fairness in Education An NGO,
Vs
Union of India and Others. .. Respondents
5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:
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