Child Visitation and Maintenance to Child

— On Sun, 8/23/09, viv0dev <nyayayodha@gmail.com> wrote:
From: viv0dev <nyayayodha@gmail.com>
Subject: [SaveIndianFamily] Re: Regarding Child Visitation and Maintenance to Child
To: saveindianfamily@yahoogroups.com
Date: Sunday, August 23, 2009, 3:42 PM
 

 I have been doing some reading and re-reading of relevant sections on custody and maintenance of children. Maybe my mind is wound up but I will proceed to state my arguments that custody and maintenance of children are to be shared by both parents as per HMA and HAMA. CrPC 125 is the only one solely laying responsibility of maintenance child on man. (Becuase it does not apply to woman)

About maintenace of children:
1. HMA Sec 26 is about custody, maintenance, and education of children. It does not talk anything about which parent has more responsibility with regards to anyone of the above topics. So it is neutral to both parents based on bare reading, leaving aside judgments and precedents.

2. HAMA Sec 20 talks about Maintenance of children and aged parents. This section again does not say that the duty lies only with man, it is also neutral. Regarding parents claiming maintenance from daughter I have a citation from book: Kirtikant D Vadodaria v. State of Gujarat, 1996 4 SCC 479. This means Hindu daughter cannot escape from maintenance to parents, so to extend further Hindu mother cannot escape from maintenance to children.

About custody (guardianship of person) of children:
1. Sec 24 of GWA 1890 states responsibilities of the guardian of person of ward:
———— –
GUARDIAN OF THE PERSON
24. Duties of guardian of the person: A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
———— –

Above means that whichever parent has custody /guardianship of ward have to maintain and spend for education of ward.

Sec 13 of HMGA 1956 states welfare of the minor to be of paramount consideration for appointment of any person as guardian of child.
———— –
13. Welfare of minor to be paramount consideration

(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
———— –

So given that only CrPC 125 lays down man to support child (with no means), and none of the other laws say anything to debar man from shared custody of child, can we state (basis of bare acts) that both child custody and maintenance as per Hindu laws is to be shared by both parents? The proportion of maintenance can be worked out based on respective incomes of parents but that is a later point.

So my argument is that the normal precendts of giving custody to one parent and visitation rights to other is only judges following precedents of previous judges. If both parents are staying not far away from each other so there are no travel problems for child etc; shared child custody and shared maintenance is both practical, as per laws, and in best interests of the child which are of paramount consideration as per Sec 13 of HMGA (which overrides GWA 1890).

yodha

— In saveindianfamily@ yahoogroups. com, “ISHQ India” <ishqindia@. ..> wrote:
>
> My Re. 1/- to your que. as I am sure others will never reply instead they will read and start parallel proceedings on your “logics” basis in their respective case (probably without application of mind in long run money drain execution if your thoughts of Rs. 150/- per day is applied vis-a-vis in normal marriage with child circumstances would you have spent that much money on your kid?).
>
> 1. Court does not work on “logics” They work on “pre-assumptions” and how far they can mould (read succumb) a Husband / natural guardian into moneyrama game.
>
> 2. In Child visitation (S. 12 GWA) suit never plead for maint. i.e. “I will pay maint. using GWA Courts discretionary powers…etc. ”
>
> 3. GWA Codified Act does work on CPC only to the sense of applying a “Procedural Law” and does not have in real sense binding Powers on Maint. suit. fixed for further adjudication at various Maint. Courts (S. 18 HAMA / S.. 24 HMA / S. 125 CrPC / DV Act as exampled) It is always voluntary in GWA Courts implied meaning thereby mostly to please wife’s ego.
>
> 4. Any Maint. given in GWA Courts are subject to modification in same court or in maint. court and so are Interim Visitation under both HMA as well as GWA courts.
>
> 5. Your “conclusions” has no precedent other than bare reading of CPC S. 60 with all that written sub – sections which in practice have no parallel till date.
>
> 6. Illustration: Average child age when GWA suit are contested are 2 years old child mostly in custody of mother. If your vague pleading formula are applied then kindly calculate Rs. 150 per day X 30 days X 12 months X 16 years which to my weak math skills comes to Rs. 8, 64,000/- payment that you have committed to pay. Leave other needs of a child 🙂
>
> 7. If I would have been your wife and we had only one 2 years old kid between us then I would come to your home and collect (read agree) for Rs. 8, 64,000/ – as interim maint. and later clear your happiness with “subject to modification” formula when child passes 10th. Board and or 12th. Board exams in the name of “higher studies needs / professional studies needs” which recently Apex Court allowed in one case.
>
> 8. Best is to contest visitation on plain vanilla grounds (read vitiation only and later custody only) and no clubbing of money as in maint. with visitation otherwise wrong (read negotiable nature) signals are sent in respective cases subject to “assumptions drawn” by a GWA Judge with parallel effects in minds of Maint. case Judge as to “what are the “pre-ponderence of pre-assumptions in contesting parties various suits” kar key….
>
> 9. I worked on all above thoughts way back in 2007 when visitation was argued and I readily agreed for Rs. 200/- per visitation but towards “conveyance charges” subject to her sitting at visual distance and not hearing distance and gifts to be allowed by her on the spot and not giving (read got it binding or voluntarily giving condition like in a Order sheet) as maint. amount. It is other matter that now I have placed “modification of visitation timings and days” Application before GWA and she has after 3-1/2 years not till date received any maint order from S. 24 HMA / S. 125 CrPC courts….etc.
>
> 10. Having a rebuttal effect to all above probably from you I suggest to create “precedent” with your below “logic” and all above are meant as guidelines not pow-wow to your “Race is not over…. by line” 🙂
>
> Think (read retrospectively) and apply procedural laws readings introspectively case to case basis. Sorry my English is bad here in what actually want to express in this last line. People will get the message I suppose…. if not then shoot PM best thoughts:-)
>
> Rgds,
> D. Arun Kumar, New Delhi
>
>
>
> —– Original Message —–
> From: Vijay Naru
> To: saveindianfamily@ yahoogroups. com ; vijaynaru@.. .
> Sent: Saturday, August 22, 2009 7:49 AM
> Subject: [SaveIndianFamily] Regarding Child Visitation and Maintenance to Child
>
>
> HI
>
> I have noticed that during child visitation and custoday proceedings court asks for money that a father can pay to her wife.
>
> I have come to conclusion that can be safely applied in view of Section 60 (1)(h), (ia), (ka), (kb), (kc), (l) on the basis of our daily salary.
>
> Say if some one is earning 30 000/- per month hence his daily salary is 30 000/30=1000.
>
> Now as per rule mentioned above only 1/3 of the salary can be attached for the purpose of maintenance that too after allowences. so lets say comes out to be approx 150/- per day.
>
> Now I am ready to pay Rs 150/- per day for visitation subject to daily visitation. Means if I am allowed to have overnight custody of child then I can pay 150 Rs/- per night. because this is the maximum I have been paid for me by the Govt. for my work for 24 hrs i.e. 8 hrs work.
>
> So let my child spent time with me for 8 hrs or for over night and I will pay maintenance per day. Now if Wife wants more money she may choose to allow DAILY VISITATION SO SHE CAN GET 150 X 30 =4500/- (this includes everything)
>
> Even if we pay as per 1000/- as calculated above we will not be in loss as we will be getting daily visiation which wife never agree .
>
> This way SHARED PARENTING CAN BE EXCERCISED IN THE PARAMOUNT WELFARE OF CHILDREN.
>
> Request suggestion and commnets.
>
> Vijay Naru
> Harmoniousfamily. org
> No Defeat is Final Till You Stop Trying
> And
> The Race is not Over Because I haven’t WON yet
>
> [Non-text portions of this message have been removed]
>
>
>
>
>
> [Non-text portions of this message have been removed]
>
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