Legal Advice

My wife and her family don’t allow me to meet my daughters

Question: My wife and her family does not allow to meet my daughters since 1 year. My elder daughter is of 3 years and younger is of 10 months but they not allow me to meet them. many times me and my family members try to take her back to house but she demand to do property on her name .since 1 year she is with her parents she did not even tell me how is my daughter's and did not allow to talk to them on call.

Advise

Your wife and her family members do not have the right to keep you away from your children. It is a serious matter that they do not allow you to meet your daughters. If your wife has been living separately for more than two years without sufficient reasons, you can file a suit for the restitution of conjugal rights. In such a situation, you have the right to compel your wife to live with you.

Your younger daughter is only ten months old, and at this age, a mother cannot deprive the father of love and affection towards his daughter. Therefore, you can claim custody of your daughters. In this situation, you have the option to claim either the restitution of conjugal rights or file a habeas corpus writ.

If the period of desertion is less than two years, you can file a habeas corpus writ in the high court against your in-laws. The court will summon your wife and her parents to justify the reasons for not allowing the father to meet his daughters. If they fail to provide valid reasons, the court shall direct your wife and her parents to allow you to meet your children.

In Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 the hon’ble supreme court has held that:

The child is only 1½ years old and the child was with the father for about four months after her birth. If no custody is granted to the first respondent, the Court would be depriving both the child and the father of each other’s love and affection to which they are entitled. As the child is in tender age i.e. 1½ years, her choice cannot be ascertained at this stage. With the passage of time, she might develop more bonding with the appellants and after some time, she may be reluctant to go to her father in which case, the first respondent (father) might be completely deprived of her child’s love and affection. Keeping in view the welfare of the child and the right of the father to have her custody and after consideration of all the facts and circumstances of the case, we find that the High Court was right in holding that the welfare of the child will be best served by handing over the custody of the child to the first respondent.

Habeas corpus proceedings are not meant to justify or examine the legality of custody. Habeas corpus proceedings serve as a medium through which the custody of the child is brought to the discretion of the court. Habeas corpus is a prerogative writ, constituting an extraordinary remedy. The writ is issued in circumstances where, in the particular case, the ordinary remedy provided by the law is either unavailable or ineffective.

Based on the facts of your case, it appears that a habeas corpus writ is the most suitable option, especially if the period of desertion is less than two years. Initiating a lawsuit for custody under the Guardians and Wards Act is a time-consuming process. Therefore, opting to file a habeas corpus writ is a good choice for you to pursue the custody of your children.

Shivendra Pratap Singh

Advocate

High Court Lucknow