Legal Question in Family Law in India

I am a software professional, 43 years old, I live and work in Hyderabad, India.

In the year 1997 I married a woman from Bangalore and we have one child, a son.

I got a legal divorce by mutual consent about 5 years ago due to serious marital conflict and intense mental harassment by my ex-wife and in-laws.

At the time of divorce my son was about 4 years old. He has been in the care and custody of his mother, who lives with her parents in Bangalore (and does not go to work), since that time.

I have been granted visiting rights to visit my son for two consecutive days every month as decreed in the divorce settlement.

My son's mother and her parents have vehemently refused to allow me to visit my son.

They refuse to bring my son to any meeting point even if it is close to their house and I am prepared to travel all the way to Bangalore just for two days every month to visit my son.

They have categorically ruled out any visit longer than one or two hours, in defiance and flagrant violation of court orders. This visit, they insist, should happen in their house in their presence only, for just one or two hours and I am not allowed any privacy with my son and neither am I permitted to take my son anywhere outside even for a simple outing.

Their intentions are to cut off all contact between me and my son and restrict it to the absolute minimum, and to ensure that I am effectively eliminated from my son's life and can play no role in his growth and upbringing, and to ensure that my son does not get emotionally attached to me.

There is no justification for this behavior since I am a loving father and my son and I have a very strong emotional bond that no one can damage. My son loves my visits and is very happy in my presence. This fact is known to his mother and her parents, which makes them all the more determined to put an end to this relationship. The reason is that my son's mother is extremely narcissistic, highly possessive and jealous, and then my refusal to agree to do as they say and obey them blindly in all matters, particularly relating to my son -- and my stubborn refusal to give up my freedom to spend quality time with my son in order to leave them in complete control makes them hate me intensely.

As I rejected their insistent demand that I visit my son only inside their house premises, I was left with no alternative except to go to his school and visit him there when his classes were on.

For 3 years his school management was very understanding and cooperative, and they allowed me to spend one or two hours freely with my son inside the school premises, on the condition that I stay inside the school premises, not take my son outside and not spend more than the allotted time because my son needed to go back to attend his classes.

My son's mother and her parents did not object to me spending one or two hours with him at his school, on the strict condition that I stay inside the school premises during the visit and made sure that the school authorities were aware of and enforced these restrictions,

I have been visiting my son since the past 3 years in this way. Instead of two consecutive days during weekends when my son did not have school to attend, I traveled every month from Hyderabad to Bangalore on my own expense every month just to spend one or two hours of quality time with my son at his school, only on the days he attended school.

When my son had exams or tests, and when his school closed for holidays or vacations, I was not able to visit him at all, since the school was either closed or did not allow my son to be distracted during his exams. This was particularly hard during summer vacation, since I could not see my son from March till June every year.

I am not allowed to speak to my son at all. If I call them and ask to speak to my son, they refuse bluntly or tell me that my son is not available, even though he would be playing nearby.

All letters that I write to my son are promptly destroyed upon receipt without being shown to my son. Then they claim these were never received. Even many gifts, toys and presents that I used to give my son during my visits were soon taken away from him and hidden away or discarded, since they would remind my son of me.

My son is now nearing 10 years of age. He does not have a mobile phone of his own and he is absolutely not allowed to make a phone call to me or to write to me.

In December 2008 my son's mother got married, and her new husband entered my son's life as a stepfather. Though he does not mistreat or harass my son, my son dislikes him intensely (at first my son was biting him and slapping him frequently) and now has started to take an intense dislike to his mother as well.

In August 2009 my son's mother gave birth to twins - two boys - from her second marriage. The twins are now one and a half years old. My son continues to live with them.

I have moved the Principal Family Court in Bangalore and filed a custody lawsuit requesting permanent custody of my son due to my lack of sufficient contact with him as well as his changed circumstances after his mother's remarriage and the birth of her twin sons.

After about a year of hearings, during most of which neither the defendant (my ex-wife) nor her lawyer attended court, filed any objections or made any arguments whatsoever, the custody suit was decided in my favor and I was granted permanent custody of my son by court decree and my son's mother was granted visiting rights on two Sundays every month.

My son's mother and her parents were furious upon receiving the judgment and rejected it.

Subsequently, I went to Bangalore to meet my son at his new school (this is now a different school which is completely against me) and to pick him up to take him back to my place in Hyderabad with me. I had copies of the court order with me and gave one to the school authorities and told them that I wanted to terminate my son's schooling with them, now that I am his legal guardian by court decree, and take him with me to Hyderabad so that he could live with me and resume his schooling in a different school in Hyderabad.

Informed by the school authorities, my son's mother and her parents rushed to the school and adamantly refused to allow my son to be given back to me. They ridiculed the court orders and demanded that the school authorities do as they say and refuse me permission to take my son with me.

At my request, my lawyer came to the school to support me, but my son's mother and her parents told my lawyer that they would not hand over my son to me and they would neither accept nor honor the latest court decree and dared us to do whatever we could.

After prolonged arguments, the school told me and my ex-wife to take this matter out of the school premises and washed their hands of this matter.

My son's mother, her new husband, and her parents then took him to their home with them.

I went to the police and lodged a complaint against them, accusing them of defying court orders.

The police were initially helpful and paid a visit to the house of my ex-wife the next day.

My ex-wife, her new husband, her twin sons and my son -- they had all run away -- and they were in hiding at some unknown location (probably the house of some relative) for nearly a month.

The police then just gave up and apologized and asked me to go back to the court.

Shortly thereafter, my son's mother filed an appeal in the High Court of Karnataka in Bangalore against the custody ruling decreed by the lower Principal Family Court.

In this appeal they have made very serious, blatant, totally false and completely concocted accusations against me without a shred of evidence, stating that I do not deserve the status of my son's father because, they allege, I am a pedophile and that my son is at risk of being physically and mentally abused by me, and they allege that I am not capable of looking after my son or raising him due to their allegation that I have mental illness and depression and so cannot work or earn money to support my son's upbringing. None of this is true, although I do suffer from intense headaches similar to migraine that reduce my level of functioning to some extent and I am on analgesic medication. I did suffer from depression during and after the divorce and separation from my son but I have recovered fully now.

They also state that my son is being well looked after and is quite happy with them in spite of living with a stepfather and two stepbrothers. All they provide as material evidence is family group photographs.

They are praying that the High Court rescind the custody of my son granted to me and let my son remain in his mother's custody and preserve the status quo indefinitely.

It was June 14 last year that the lower Family Court gave me custody of my son and that judgment clearly states that my son's mother must hand over my son to me forthwith (with immediate effect).

The case in the High Court is still pending. The appeal has not yet been accepted by the court, and the hearings are yet to begin.

It is a matter of grave concern to me that I have heard that several judges of the Karnataka High Court are strongly biased in favor of women and against divorced fathers when it comes to granting custody of children, even if the child is a boy and is old enough to live with his father, regardless of other factors.

In the appeal it is admitted by my son's mother that my son is very intelligent and doing very well at school, but he has psychological issues -- my son has been diagnosed with Asperger's Syndrome and mild autism and he is very awkward, reticent and reserved socially and is deeply introverted and unable to articulate or otherwise express his feelings to anyone, even to his mother.

I have noticed these characteristics of my son's behavior and personality myself, and he has also told me that he hates most of his classmates and that he has only one good friend.

In the appeal, it is alleged that I am responsible - either directly or indirectly - for my son's psychological problems, although I sincerely believe that the real reason is my son being physically separated from me and being unable to spend time to get emotionally closer to me and be free and frank with me and have a deeper, more meaningful relationship with me.

I have not seen my son since the past 7 months as I do not want to visit him in the new school anymore, and I cannot go to his mother's residence to visit him.

Regarding filing of a suit alleging Contempt of Court, I do not wish to follow this path as that case is likely to get prolonged and the ultimate punishment (if any) meted out to my son's mother will neither be severe nor deterrent enough to pressurize her to give my son to me.

My question is this :

Since I am legally my son's guardian now, as decreed by court (until and unless the High Court reverses the lower court's judgment and restores custody to his mother)....

How can I spend time with my son ? Especially when visits are being so drastically cut down ?

How can I communicate with my son from my home in Hyderabad ?

Is it not legal that I can bring my son to live with me and my parents in Hyderabad (I have not remarried) until the High Court completes processing the case started by the appeal ?

What will be the consequences if I pick up my son somewhere outside his school before he returns home and persuade him to come back with me to stay with me in Hyderabad ?

I am totally confident that my son will agree to my gentle persuasion (with some hesitation due to the fear of how his mother or maternal grandfather would punish him for this).

I will never insist or force him if my son is sincerely unwilling and refuses to come and stay with me.

Is it not true that the lower Family Court's decree is binding until and unless a new decree is passed by the High Court that revises it ?

I shall be grateful for any suggestions or ideas that might help me and which will work in the legal system in South India.

Your advice may well make a huge difference to a helpless, lonely and silently suffering young boy's life and his need to be together with his father.

Thank you very much in advance

-- A father enduring separation agony from his only son

2 Answers from Attorneys

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