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Q.Wife filed false IPC 498A and left home taking son away without informing
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Q. Wife filed false IPC 498A and left home taking son away without informing

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Anonymous

posted 2 months ago

I got married in 2009 to an influential family of a U.P. town and has 8+ years old son. We 3 were living in Mumbai on rent as I am in service and my wife teaching in the same school of our son.

My wife was very aggressive, dominating since start having severe anger issues. Many a times in these years when she lost temper on even trivial issues, she used to get violent, shout, abuse, threaten, lock herself, even causing to hurt herself and me. This led to negativity, quarrels, arguments leading to my mental torture, physical stress. When such incidents happened, I called my in-laws to sort it out and if there has been any medical history, I am willing to help her. But everytime they brushed aside the matter saying her anger is little high, so you let her be on her own for 3-4 days and she will be fine. I kept continuing for the sake of my son, family until Aug 2018 when a similar incident reoccurred where she beat me, I called both side parents to provide the solution to this as it had become unbearable to live under same roof without fear.

Seeing my tough stance this time, my in-laws began to threaten us and also started inquiring about how much money will we give them if to separate. We told them to deal with this amicably, maturely keeping best interest of child in mind rather than dirtying the situation even more with this behavior. Next we came to know that they left my Mumbai home alongwith my wife, son (+ valuables) without even informing me when I was in office.

We got to know that they all are in their U.P. town and within next 3 days filed a false IPC 498A, 323, 325, 504 FIR against me and my 65 years old parents (who never even lived with us) on the basis of fraud medical report manufactured through their local influence. My parents applied for bail in their U.P. town and got it in 4 attempts as my in-laws used lot of their local political connections to obstruct. So, I filed a writ petition in Allahabad HC for FIR quashing based on wrong jurisdiction, false allegations. HC transferred the case to mediation which failed in May 2019 pending final order.

Meanwhile, my wife had come back to Mumbai with my son in Oct 2018 living in a separate home resuming her job, son's studies with me happily supporting son's education. But after HC mediation failed, she has again left Mumbai with my son without informing me and gone back to her U.P. town and uncontactable.

I am extremely stressed now as my son's studies are interrupted and in U.P, his future will get destroyed in that regressive, negative environment. What is the way forward for me now?

1. Apply for child custody - Chances I will get it? Can I apply from Mumbai court? Possible outcomes? Time period?

2. Other options?

All I want is mental peace for both of us and son's bright future. If separation is the way, I am ready for it too but dnt know how to proceed peacefully when opp. party is hellbent on making it dirty and ugly + 498A is still running.

I want you to review the situation and advice both on follow up action on 498A case (considering its in U.P.) and also what to do next when wife has left son without informing?

I am expecting that they will make it more ugly now by filing more cases from U.P. town to harass me coming there again n again from Mumbai.

Regards,.
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A. 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
.==============
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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Anonymous

Replied 2 months ago

Thanks. Few specific doubts on child custody case if you may clarify:


1. As it will be contested child custody, I understand to get visitation rights immediately. Now, my question is that though the final verdict may take 1-2 years but can in the interim/ or immediately on such case filing, is there any possibility that the court directs mother to immediately come back to Mumbai with child & rejoin her job/ resume son's school as she was doing till now or otherwise give interim custody to father (till the final verdict comes) since I'm already in Mumbai; considering welfare of child being in Mumbai (continuing same school, exposure, metro environment etc.). OR will the court keep waiting for the final verdict (which may take 1-2 years) and till that time no option but to child keep living with mother in U.P town?


2 If the answer to the above is yes to some interim custody to father, is there any precedence or case law/ judgment to the this effect?


3. What happens if the final verdict of a child custody case is contradictory to that of divorce case filed later?


4. Would you be able to suggest good/ reasonable lawyers in Mumbai who can present father’s perspective strongly in the court & have great track record in winning such cases?


About 498A case, my Allahabad HC lawyer told earlier there is no provision of anticipatory bail in U.P till IO files C/S & FIR quash happens in rarest of rare case. So, my final HC order is likely to transfer the case back to lower court in U.P town (if FIR not quashed) where the FIR was filed from giving me arrest stay till C/S is filed in court. However, very recently anticipatory bail has been reintroduced in U.P. In light of this, some clarification requested:


5. Now the final HC order (after failing of mediation) pending to come in July, will provide me regular bail?


6. If the answer to above is no ->> except for false medical report, opp. party doesn't have anything to show. So, after C/S is filed, what r my chances of getting bail in 1st appearance in lower court?


7. I am expecting D/V &125 cases filed from U.P town to harass me. a) Are these transferable to Mumbai and physical appearance in every hearing is must?


8. If the answer to above is no, what to do as I will have 3-4 cases to fight whose dates may fall differently. Not possible for me to travel to U.P 2-3 times a month w/o leaving my Mumbai job.


Really grateful if u reply point-wise to each of the 8 queries above.

Reply

A. apply for child custody by way of filing a suit in this regard at your location, however, the same can be transferred to her location but chances are low as you have proof of son studying at your location,
various factors are considered while deciding custody petition like financial status, welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities etc

1. if you want to rejoin matrimonial knot, then,
try to settle the matter amicably with your wife involving elders/relatives/friends etc and take her back, and if, failed, file Restitution of conjugal rights petition in the Court,
and,
2. if you want to terminate the matrimonial knot, then,
try to settle the matter amicably with your wife involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,
if failed, you have two options,
one option is to,
file contested divorce on the grounds of mental cruelty, but it will take around 4-6 years, and more
also once you file contested divorce she will surely file/claim
498a complaint (already filed and pending)
Domestic Violence case
maintenance,
so be ready for them too,
and,
the second option is to file Restitution of conjugal rights petition in the Court, to show your bonafide intentions to save the matrimonial tie, however, you can withdraw the same any time,
RCR will work as a safeguard to 498a, maintenance, DV etc
Call/mail for a detailed discussion/understanding

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Suneel Moudgil

Experience: 15 Year(s)

Responded 2 months ago

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Anonymous

Replied 2 months ago

Thanks. At present, I don't intend to bring her back. However, few doubts on child custody case:

1. As it will be contested child custody, I understand to get visitation rights immediately. Now, my question is that though the final verdict may take 1-2 years but can in the interim/ or immediately on such case filing, is there any possibility that the court directs mother to immediately come back to Mumbai with child & rejoin her job/ resume son's school as she was doing till now or otherwise give interim custody to father (till the final verdict comes) since I'm already in Mumbai; considering welfare of child being in Mumbai (continuing same school, exposure, metro environment etc.). OR will the court keep waiting for the final verdict (which may take 1-2 years) and till that time no option but to child keep living with mother in U.P town?

2 If the answer to the above is yes to some interim custody to father, is there any precedence or case law/ judgment to the this effect?

3. What happens if the final verdict of a child custody case is contradictory to that of divorce case filed later?

4. Would you be able to suggest good/ reasonable lawyers in Mumbai who can present father’s perspective strongly in the court & have great track record in winning such cases?

About 498A case, my Allahabad HC lawyer told earlier there is no provision of anticipatory bail in U.P till IO files C/S & FIR quash happens in rarest of rare case. So, my final HC order is likely to transfer the case back to lower court in U.P town (if FIR not quashed) where the FIR was filed from giving me arrest stay till C/S is filed in court. However, very recently anticipatory bail has been reintroduced in U.P. In light of this, some clarification requested:

5. Now the final HC order (after failing of mediation) pending to come in July, will provide me regular bail?

6. If the answer to above is no ->> except for false medical report, opp. party doesn't have anything to show. So, after C/S is filed, what r my chances of getting bail in 1st appearance in lower court?

7. I am expecting D/V &125 cases filed from U.P town to harass me. a) Are these transferable to Mumbai and physical appearance in every hearing is must?

8. If the answer to above is no, what to do as I will have 3-4 cases to fight whose dates may fall differently. Not possible for me to travel to U.P 2-3 times a month w/o leaving my Mumbai job.

Really grateful if u reply point-wise to each of the 8 queries above.

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Suneel Moudgil

Experience: 15 Year(s)

Replied 1 month ago

1. No possibility, the chances are that the child will remain with the mother at the place of her choice
2. NA
3. didn't understand the question,
4. you can search from the database,
I too have few contacts there but not sure about their professionalism, better to search on your own,
Quashing is rarest almost everywhere, defend 498a once remand back to the lower court
5. depends upon the order of the High Court,
6. usually bail is granted within 2-3 days, what is the section other than 498a
7. transferable but will not transfer, appearance is not mandatory in DV and 125, but it depends upon your lawyer,
8. if your lawyer asks you to come on each and every date, then you can request for a single date for all cases

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Anonymous

Replied 1 month ago

Thanks a lot Sir for your replies. Kindly look into the following points:

3. By contradictory verdict in child custody case and divorce case filed separately, I meant that if I file child custody now and get verdict in my favour say after 1 year. Whereas, in the divorce case whose verdict comes later than child custody case, court passes order for custody in favour of mother. Then in such a contradictory verdict on custody in two different cases, which verdict will prevail?

4. Ok. If you can share your contacts, will do my due diligence. My purpose is to find a strong and reasonable lawyer who can understand and present father's perspectives and have good track record in such cases. Also if you let me know where are you based at?

6. Sections other than 498A are 323, 325 and 504. Opp. party has only fabricated medical report prepared under their local influence in district hospital as my brother in law is a doctor. Apart from this, they don't have anything which they can use against me. What are my chances of arrest or not getting bail in 1st appearance?

Appreciate point wise response on the above. Thanks in advance.

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Suneel Moudgil

Experience: 15 Year(s)

Replied 1 month ago

1. if the verdict has been declared in custody case, then the Family Court won't pass another verdict for child custody in Divorce case, and if the Court pass such an order, then in such a situation, higher Court's order prevails, however, you have a right to approach next higher Court for revision/appeal. whenever any verdict pass by the any of two Court's place it in the Court file of the pending case,
2. I am based at Panipat, Haryana, call me to get details of my contacts
3. all are bailable except 498a, chances of getting bail are HIGH but bail matters are sole discretion of the Magistrate/Judge

for further clarification/information pls take paid consultation

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Anonymous

Replied 1 month ago

Thanks you Sir

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Suneel Moudgil

Experience: 15 Year(s)

Replied 1 month ago

Welcome

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