Category Archives: judgements

Indian SC shows its lack of understanding child welfare once again

Indian SC asks a 7 yr. old minor who has been fatherless for over an year and likely being brainwashed if she wants to stay with mother or father to decide custody. Is this OUTRAGEOUS or what? In the process the SC overturned both US and Calcutta HC orders. WAY TO GO SC…!!!!!!!!!

Does the judiciary realize that putting a child in a situation where she has to choose between her parents is insane?

Does the judiciary realize that children too have survival instincts and in cases of parental alienation will always do whatever it takes to please the alienating parent even if that means deriding/abusing/abhorring the left behind parent?

Does the judiciary realize that its prime goal is to rule keeping in mind the welfare of the child and that children are not always the best judge of their welfare, especially minors and alienated children?

READ THE ARTICLE HERE

When Mommy wants her Children, it is different

WOW is all i could say when i read this case. Father detains children in India, Mommy comes back to US and files a habeaus corpus petition in Kerala HC. Kerala HC orders father to return US citizen children to Mom in Texas until a court in Texas rules on custody because Texas is the right jurisdiction. WOW is all I can say….WHY

Reverse the genders in this situation and you get my story. I too filed a Habeaus Corpus in Delhi HC which was dismissed by a vague one line order (“it does not lie here, hence dismissed”) and currently I am appealing in SC and none of the judges seem to be taking the tack that this Kerala HC judge took in this case. WHY? BECAUSE I AM DADDY, I AM A MAN!!!!!

read the Kerala HC judgement here

False Allegations thwart criminal proceedings

Parental kidnapping is a crime in the US. However the way the US code is written (see below), if the kidnapper has made allegations of domestic violence/child abuse, the kidnapper can try to take shelter under these as “affirmative defense”.
No surprise then that so few moms who kidnap their children and take them abroad escape federal warrants and criminal prosecution. Because if there is anyone who knows how to make false allegations of abuse, it is MOM. Dads, even if they were to make allegations will probably be laughed off.

§ 1204. International parental kidnapping

(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.
(b) As used in this section—
(1) the term “child” means a person who has not attained the age of 16 years; and
(2) the term “parental rights”, with respect to a child, means the right to physical custody of the child—
(A) whether joint or sole (and includes visiting rights); and
(B) whether arising by operation of law, court order, or legally binding agreement of the parties.
(c) It shall be an affirmative defense under this section that—
(1) the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights and that order was obtained pursuant to the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and was in effect at the time of the offense;
(2) the defendant was fleeing an incidence or pattern of domestic violence; or
(3) the defendant had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.
(d) This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction, done at The Hague on October 25, 1980.

Jahgirdar, Kumble and their wife: Is anyone thinking about the little girl?

Many have seen this case in the media over the years and followed it. However we may not have looked at it in its entirety

This case fascinates me because it seems to be a classic example of the stupidity of parents (in this case it seems the stupidity was initiated by the mom) who cannot rise above the pettiness of their squibbles over the child in the best interests of the child. It is also an example where the parents started out very rationally and logically but then things went downhill from there. This case is also a classic example where the child was a football, treated as such not only by the parents but also by the courts. It also seems to be an example where as far as custody of daughter is concerned, a woman does not need to resort to false allegations, helping daughter grow up during puberty is enough. Finally i think this case clearly shows that parents should not expect the courts to sort out their family problems for them but try their best to work out solutions themselves. Unfortunately divorce destroys the mind of both parents and they cannot talk and reason rationally with each other any more. This case also shows that Indian courts and law do not give two hoots about joint custody, the LAWS NEED TO CHANGE. In this particular case an order of joint custody was challenged and overturned in a very short period of time and this violation of justice never came up in any of the SC proceedings at all.

I have attached the relevant judgements here but here is a summary that proves my above points

1. Marriage dissolved by mutual consent in 1999

2. Both parents agree to be joint guardians and custodians with child shifting alternate weeks between both parents — STARTED OUT REALLY WELL, NO FALSE ALLEGATIONS

3. Mommy soon after marries Anil Kumble and starts filing in family court for permanent custody and for taking child abroad, possibly for cricket matches — WHAT HAPPENED, AGREES IN APRIL 1999 FOR JOINT AND IN A FEW MONTHS FILES FOR PERMANENT CUSTODY??

4. Family court agrees for child being taken abroad with certain conditions but does not change custody decree

5. Mom challenges family court order in HC who gives custody for one year to mom and visitation to Dad Jahgirdar–THIS IS WHEN THINGS START GOING DOWNHILL…..DID THE HC REALIZE THE IMPLICATIONS OF MODIFYING THE CUSTODY ORDER ON DAD?

6. Jahgirdar and mom each file for sole custody in family court and appeals HC order in Supreme court

7. In April 2001, SC decides not to overturn HC judgement, orders family court to decide expeditiously in 4 months and orders family court to not be influenced by the HC order which SC was not convinced was in the best interests of the child–IF SO WHY DID SC NOT OVERTURN IT, DOES IT EXPECT THE FAMILY COURT TO OVERTURN THE JUDGEMENT OF A HIGHER COURT?? DOES NOT MAKE SENSE

8. Family court in April 2002 gives custody to dad and visitation rights to mommy

9. In dec 2002 HC on appeal by mom gave custody to mom and visitation rights to dad

10. Dad appealed in SC again, In Jan 2004, SC did not overrule HC and felt that since child was near puberty being with mom was best. It however said that when mommy traveled abroad, child should stay with father.

11. Since then father has been fighting for custody in family courts.

12. In 2007 something happened during a visitation which led to the daughter filing a police complaint against the dad Jahgirdar (dad claims it is a false complaint) apprehending a threat to her life. read the news article here

13. Further the wife got a stay from the HC against permanent custody proceedings initiated by father in family court on the grounds of this being a mischevious application designed to disturb custody of the child. read the news article here

SO WHERE WILL THIS END UP? WHO KNOWS? BUT SOON THE DAUGHTER WILL BE 18 WHEN SHE CAN DECIDE HOW HER LIFE SHOULD PROCEED. AFTER ALL SHE HAS BEEN EMBROILED IN THIS BULLSHIT BETWEEN HER PARENTS SINCE SHE WAS 6 YRS. OLD AND PERSONALLY I WOULD NOT BLAME HER IF SHE DECIDES TO KICK BOTH HER PARENTS TO THE CURB AND HEAD OFF ON HER OWN.

READ THE 2001 SC JUDGEMENT HERE

READ THE 2004 SC JUDGEMENT HERE

Child’s wishes considered paramount by SC India

Paediatrician mommy kidnaps children but child tells judge she wants to stay with father. Lower courts grant custody to dad, mommy fights all the way to the Supreme court, tries to use all kinds of arguments (e.g. woman needed during puberty stage of child, parental alienation has made child say that she does not want to stay w/ mommy etc) but to no avail. Two key points in this case

1. child stated wish to stay w/ father

2. mom had not made any damaging allegations against father of child abuse

read judgement here

Hero Father gets custody after 5 years of battle in India

Congratulations to this hero father for not only getting custody of his children in their best interests but also for continuing to fight

He has lost more than 5 years with them which even the Good Lord cannot return but he has saved these innocent souls from the devastation they would have faced with their unfit mother

He has allowed the mother to have unrestricted visits with the children, hopefully he will monitor those and make them supervised to prevent further child abuse.

This is also a good case that shows the reasoned approach taken by the judge in the best interests of the child without exhibiting any form of gender bias

Read the judgement here

Parental Abduction is a Crime in the US: US v. Fazal

This is for those whose children have been kidnapped from the US by a parent to Hague or non-hague countries. Many of us may not realize this but parental abduction is a crime in the US and governed by IPKCA.

There are at least 19-20 cases under IPKCA where parents have been convicted for taking children away. I have undertaken a project to research these cases and build further knowledge and will post my findings here.

The first case I am posting details on today is UNITED STATES OF AMERICA,Appellee,v.FAZAL-UR-RAHEMAN-FAZALa/k/a Fazal Raheman

Dr. Fazal Raheman, who was convicted of the crime in the following circumstances: He had married his wife in India and moved with her to Massachusetts. They had two children. After a few years he apparently became concerned that his wife was becoming too “independent” and he “made threats” against her. He then took the children without her consent to his former home in Nagpur, India and refused to return them. His wife obtained an emergency custody order from a court in Massachusetts while the husband obtained a custody order in his favor from the Nagpur Family Court. The mother traveled to India to try to find her children and bring them home but her husband filed criminal charges against her in India and she fled to the United States without her children. Dr. Raheman was then charged with the crime of international parental kidnapping. He was also charged with wire tapping since he had illegally tapped his wife’s telephone and videotaped her. He was captured during a return trip to the United States and after trial he was convicted of both charges and was sentenced to three years’ imprisonment, followed by three years of supervised release. He was ultimately released from prison on condition that he effect the return of his two children – then 12 and 8 years of age – to their mother in the United States. However, Dr. Raheman then proceeded to provide false information to the Nagpur Family Court, which was found to have inhibited the likelihood that the children would be returned to the United States. As a result he was sentenced to a further year and a day in prison. The Nagpur court transferred custody of the children to Raheman’s elderly mother in Nagpur and the mother had no contact with them except for sporadic visits. Imposing the second sentence, Judge Patti B. Saris harshly criticized Raheman for stealing the children from their home in the U.S., and noted that Raheman had betrayed the trust of the country which had given him great benefits while he lived here. Dr. Raheman appealed but a federal appellate court held that the International Parental Kidnapping Act was applicable to a father who took his children from the United States to India even though the pre-decree abduction was not illegal under state law. United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).

The 2002 order  The 2004 opinion