File appeal in SC against impugned order passed by HC
2) take the plea that as per divorce decree father has been granted visitation rights
3) that father has been paying regular child support
Mother not with child; father barred from meeting child
- Divorce in 2018, in Pune - as per the DECREE, the custody of the child will be with the mother, access rights with father, also father to pay child support - In 2019, the mother came to Kolkata with the child, the father followed - the access continued as per the DECREE - In 2023, the mother again came to Chandigarh and filed a Criminal Writ Petition (Protection) in the High Court, against the father - the Judge passed an order that the father will NOT meet the child - Final arguments are done for the case on July 15 2024, however no Judgement till date - In August 2024, the mother travelled to Chennai for work leaving the child with the maternal grand mother of the child (nani) Question: What provisions does the father have to start with his child access?
Asked 4 months ago in Family Law
Religion: Hindu
10 Answers
Actually the High Court Order was passed in December 2023 - Can I still challenge it in SC?
Asked 4 months ago
You can file appeal with application for confirmation of delay
delay would be condoned in interests of justice
Looks like the high court has wrongly passed this order. The high court can not modify the decree in writ proceeding .
So you can challenge the order in Supreme Court. The delay can be condoned.
We have given similar reliefs before from the Supreme Court.
you can challenge it in SC by filing a condonation of delay application.
Father can file a fresh child custody case due to change in circumstances as the reasons for seeking child custody.
he can attach the details of payment made towards child custody and the refusal of the mother to allow him the visitation rights as per court order.
Insofar as the high court judgment, if the father is aggrieved by the decision of the P&H high court then he can prefer an appeal if it is recommended by the lawyer.
The reason for the high court judgment refusing to entertain father's application for visitation rights is not known because it was a criminal writ petition filed by the mother of the child, hence the order is to be perused to render more proper opinion in this regard.
If you would like to prefer an appeal before supreme court, then you can file an application along with the memorandum of appeal seeking to condone delay in preferring the appeal, generally the higher courts will consider to condone the delay in the interest of justice
As per the ruling of the Supreme Court that it is the fundamental and constitutional right not only for the non-custodial parent to have the right to access his child but also of the child to meet and spend quality time with his/her non-custodial parent. In your situation the impugned order needs to be reviewed as well as what stand/defense you had taken in the High Court against the Criminal Writ Petition and the averments made by the mother of your child. If the impugned order has been obtained by suppression of facts or fraudulently means then you can challenge the said impugned order in the Supreme Court.
- If the High Court has restrained father from meeting the child , then the husband has only option to approach the Supreme Court within a limitation period of 90 days from the date of passing the order by the High Court.
- Since, already 9 months has passed from the said order , then limitation period of filing is expired.
- However, the husband can file the Appeal with an application for condonation of delay on the reasonable ground.
Dear Client,
The father is entitled to some rights in regard to the child, according to the divorce determination and the custody of the mother. The restraining order that prevented the petitioner from having any contact with the children was made without a full blown hearing, thereby cannot replace the existing decree. He can claim he has a right to access the child at her house probably owing to the fact that the mother is failing in providing proper care as evidenced by her leaving the child at the grandparent’s house. The father should file an application in the High Court stating that he should visit his child because it is unjust for a child not to have contact with a caring parent. The laws like the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890 says that child’s best interest which supports the father to access his child.
Hope you find this answer satisfactory.
Dear Client,
There is no limitation period prescribed by the Supreme Court of India in case, where an individual wants to file an appeal against a High Court order which was passed in December 2023. But it is always best to file the SLP as soon as possible to not complicate the legal proceedings. In case the order is appealable under the Civil Procedure Code (CPC), you can consider an appeal under Order 43. The Limitation Act of 1963 can also set specific time limits, they are normally a maximum of 90 days. Seeking the services of a lawyer is highly recommended before filing the SLP to determine the strength of the case and to prepare the grounds for the challenge. In cases where the petition is filed, the court will then set a hearing date during which the counsel for in the case will present it.
Hope you find this answer suitable for resolving you query.