(Summary + Examples + Key Judgments)

Under CPC, appeals are of several kinds depending on who is appealing, from which order, and at which stage. Appeals are a statutory right, not automatic — meaning they exist only when provided in CPC.

1. FIRST APPEAL (Section 96 CPC)

✔ What it is

A full appeal on facts + law filed against a decree passed by a trial court.

✔ When filed?

• Against any final decree or preliminary decree
• Appeals allowed even if decree is ex-parte
• Not allowed when decree is passed with consent of parties

✔ Court

Usually from:

• Civil Judge → District Court / High Court
• District Judge → High Court

✔ Example

A suit for partition is dismissed by the Trial Court. The plaintiff files a First Appeal challenging evidence, witnesses, documents, and legal errors.

✔ Important Case Law

Santosh Hazari v. Purushottam Tiwari (2001)
→ First appeal is a valuable right; appellate court must re-appreciate evidence completely.

2. SECOND APPEAL (Section 100 CPC)

✔ What it is

A further appeal ONLY on substantial question of law.

✔ When filed?

Only after:

1. Trial Court judgment
2. First Appellate Court judgment

Appeal lies to the High Court only.

✔ What is NOT allowed:

• Re-assessment of evidence
• Questions of facts

✔ Example

Two courts hold that a property belongs to X based on evidence. Y files a second appeal alleging:
“Whether unregistered family settlement is admissible?”
→ This is a substantial question of law, so the High Court may admit.

✔ Key Judgment

Kondiba Dagadu v. Savitribai (1999)
→ High Court cannot interfere with concurrent findings of fact unless there is perversity.

3. APPEAL FROM ORDERS (Section 104 & Order 43 CPC)

✔ What it is

Appeal against specific orders listed in CPC.

✔ Example Orders Appealable

• Order returning plaint (Order 7 Rule 10)
• Order granting/refusing temporary injunction (Order 39 Rule 1 & 2)
• Order appointing receiver (Order 40)
• Order rejecting application under Order 9 Rule 13
• Order refusing to set aside sale (Order 21)

✔ Example

Court refuses to grant temporary injunction in a property dispute → party can file Appeal from Order under Order 43 Rule 1(r).

✔ Judgment

Shah Babulal Khimji v. Jayaben (1981)
→ Some interlocutory orders amount to “judgment” and are appealable.

4. APPEALS TO THE SUPREME COURT (Civil Appeals)

Two main types:

A. Appeal by Special Leave (Article 136)

✔ Nature

Discretionary remedy. Not a matter of right.

✔ Example

High Court upholds eviction order. Tenant seeks SLP before Supreme Court for relief.

Key Case

Pritam Singh v. State (1950)
→ SC will interfere only when there is grave injustice or exceptional circumstances.

B. Appeal Under Article 133 (Civil Appeal as a matter of right)

✔ When?

Where a case involves a substantial question of law of general importance and High Court certifies it.

5. LETTERS PATENT APPEAL (LPA)

(Only where High Court’s Letters Patent allows)

✔ What it is

An intra-court appeal:
Single Judge decision → Division Bench of the same High Court.

✔ Not available when:

• Matter decided by a Single Judge in second appeal
• Filing against certain statutory tribunals

✔ Example

Single Judge of High Court dismisses a writ petition. Petitioner files LPA before Division Bench.

6. MISCELLANEOUS APPEALS

Examples include:

A. Appeal under Order 21 (Execution Appeals)

Filed against orders passed in execution proceedings.

B. Appeal in Small Causes

Where the Provincial Small Causes Courts Act applies.

Example

Judgment-debtor challenges an execution order attaching his salary.

7. APPEAL UNDER SECTION 96(4) – EX-PARTE DECREE

A specific appeal against an ex-parte decree.

Example:
Defendant did not get notice and the decree is passed → He can file Appeal or Order 9 Rule 13 application.

8. APPEAL BY INDIGENT PERSON (Order 44 CPC)

If a person cannot pay court fees, they can appeal as an indigent person.

COMPARISON TABLE (Quick Revision)

SUPREME COURT CLERIFICATION ABOUT S.142(2)(A) NI ACT:

Supreme Court of India (SC) has clarified regarding where to sue (“where to file”) when a cheque bounces under Section 142(2)(a) of the Negotiable Instruments Act, 1881 — i.e. the “bounce / cheque-dishonour” scenario under Section 138 of the Negotiable Instruments Act, 1881.

What SC clarified: Where to file cheque-bounce case

• The Court held that for an “account payee” cheque (i.e. cheque deposited for collection through a bank account), the complaint must be filed only at the court which has jurisdiction over the branch of the bank where the payee maintains their bank account.
• It does not matter where the cheque was physically deposited or presented. Even if the cheque was deposited at a different branch (for convenience) — the law treats it as “deemed delivered” to the payee’s “home branch” (i.e. branch where payee’s account actually is) for the purposes of territorial jurisdiction.
• The Court reiterated that this is the effect of the 2015-amendment to Section 142 (sub-section 2(a)). The amendment was introduced to prevent forum-shopping and put beyond doubt that territorial jurisdiction depends on the payee’s home branch, not the place of presentation.

Key Statutory Rule — Section 142(2)(a)

After the 2015 amendment, the relevant provision reads broadly as: if a cheque is delivered for collection through an account, “the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction the branch of the bank where the payee or holder … maintains the account is situated.”

Hence, even if you deposit the cheque somewhere else, the “home branch” matters.

 Implications / What this means in practice

• If you — as payee/holder — receive a bounced cheque and you maintain your bank account in, say, Gurugram (or any branch), then you must file the complaint in the court having jurisdiction over that bank-branch’s area.
• You cannot file the complaint simply where you deposit the cheque (if that is a different branch), just because you dropped it there. That branch’s court will not have proper territorial jurisdiction under Section 142(2)(a).
• This removes ambiguity and stops “forum-shopping” (i.e. pick whichever court gives you convenience), ensuring a fixed, objective jurisdiction rule.

Recent Case: What triggered the Clarification

• Recently (judgement dated 28 Nov 2025), SC bench of Justices J. B. Pardiwala and R. Mahadevan delivered this ruling, reaffirming that cheque-bounce complaints under Section 138 must be filed at the payee’s home-branch court, regardless of where cheque was deposited.
• In the related earlier case, though the cheque was deposited in Mumbai branch, payee’s operative account was in Mangalore; SC held Mangalore court had jurisdiction and directed the case be heard there.

What you should check/apply (if you want to sue)

When preparing to file a cheque-bounce complaint:

• Identify the bank branch where your (payee’s) account is maintained — that is your “home branch”.
• Ensure you file the complaint in a court whose territorial jurisdiction covers that branch.
• Don’t file in a court just based on where cheque was deposited/presented; that would likely be dismissed for lack of jurisdiction.
• Act in accordance with other procedural requirements under Section 142 & Section 138 (notice period, etc.).

Checklist for “Where to file a cheque-bounce case (S.138 NI Act) after Supreme Court’s clarification on Section 142(2)(a)”.

Cheque Bounce – Where to Sue?

Supreme Court Clarification on Section 142(2)(a) NI Act

1. File the Case ONLY at the Payee’s Home-Branch Court

Home-branch = the bank branch where YOU (the payee/complainant) maintain your account.

• Even if you deposit the cheque at another branch for convenience —
  you must file the case only at the court having jurisdiction over the branch where your bank account actually exists.

2. Territorial Jurisdiction Rule

Under Section 142(2)(a):

If the cheque is presented through an account, the complaint shall be filed only in the court within whose jurisdiction the payee’s bank branch is located.

This rule is mandatory, not optional.

3. What Does NOT Matter Anymore

• It does not matter where the cheque was physically deposited.
• It does not matter where the drawer (accused) has an account.
• It does not matter where the dishonour memo was issued.
• It does not matter where the payee lives or works if different from bank-branch area.

Only the payee’s home-branch decides jurisdiction.

4. Court Examples

Example 1

Your bank account: Axis Bank, Rajouri Garden Branch (Delhi)
You deposit cheque at: Connaught Place Branch
→ Case must be filed at the court having jurisdiction over Rajouri Garden, not CP.

Example 2

Your home branch: HDFC Bank, Gurugram Sector 14
Cheque dishonoured in: Delhi
Drawer lives in: Noida

→ You must file in Gurugram court (Sector 14 jurisdiction)
because that’s where your account is maintained.

5. Documents Required (Checklist)

• Cheque copy
• Original bank return memo (dishonour memo)
• Legal demand notice
• Proof of sending notice (speed-post receipt + tracking)
• Complaint under Section 138 read with Section 142 NI Act
• Affidavit of evidence
• Cognizance application

6. Time Limits you must follow

• Cheque validity: 3 months
• Notice period: Within 30 days of dishonour
• Waiting period: 15 days after notice
• Filing complaint: Within 30 days after expiry of 15-day notice period

 7. Basic Steps to File Case

• Send legal notice within 30 days
• Wait 15 days
• If no payment → prepare Section 138 complaint
• File it at your home-branch court
• Court will issue summons to accused

8. Supreme Court’s Purpose Behind This Rule

1. Avoid “forum shopping”
2. Uniform rule across India
3. Fix a single, clear jurisdiction
4. Prevent harassment of accused by filing cases in distant places

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Here is a clear, simple, and complete explanation about FIR:

What Is an FIR?

FIR (First Information Report) is a written document prepared by the police when they receive information about the commission of a cognizable offence (serious offences where police can arrest without a warrant and start investigation).

It is the first step to start a criminal investigation.

Key Points About FIR

 1. Filed for Cognizable Offences Only

Police register FIR only when the offence is serious (like theft, murder, rape, kidnapping, cheating, causing hurt, etc.).

2. Anyone Can File It

Victim, witness, relative or even a person who knows about the crime can file an FIR.

 3. Free of Cost

Police cannot charge any money to file an FIR.

4. FIR Must Be Registered Immediately

Police must record it without delay once a cognizable offence is reported.

5. Copy Must Be Given to Informant

A free copy of the FIR must be given to the person who filed it.

6. FIR Number & Police Station Details

Every FIR has a unique number and the name of the police station.

What Does an FIR Contain?

An FIR usually includes:

• FIR Number
• Date, Time & Place of the incident
• Date & Time of reporting
• Name, address & contact of the complainant
• Facts of the incident (What happened?)
• Description of accused (if known)
• Names of witnesses (if any)
• Sections of law applicable
• Signature of the complainant
• Signature/seal of the duty officer

Why Is an FIR Important?

1. Starts the Criminal Investigation

Police cannot investigate a cognizable offence without registering an FIR.

2. Creates an Official Record of the Crime

It becomes the first official record in the criminal justice process.

3. Helps in Protecting Rights of the Victim

Once FIR is filed, the victim gets the right to:

• Investigation
• Arrest of accused
• Protection orders (if needed)
• Speedy action by police

4. It Is Used in Court

The FIR is used as an important document in court proceedings.

 5. Helps Prevent Manipulation

Once written and signed, it cannot be changed except with court permission.
This prevents false alterations.

Preparation & Legal Grounds

Summary:

The petitioner must identify which fundamental or legal right is violated. Proper documents, affidavits, and annexures are prepared.

Example:

A government officer is transferred as punishment without reason → violation of Article 14.

Judgment:

D.K. Basu v. State of West Bengal (1997) → Court stressed that violation of fundamental rights justifies writ jurisdiction.

2️. Filing of the Writ Petition

Summary:

Petition is filed along with index, synopsis, affidavit, vakalatnama, annexures, and court fees.

Example:

Writ of Mandamus seeking direction to police to register FIR.

Judgment:

Lalita Kumari v. State of U.P. (2013) → Mandatory registration of FIR for cognizable offence.

3️. Admission / Preliminary Hearing

Summary:

Court checks whether the petition has merit and falls under writ jurisdiction.

Court may:

• Issue Notice
• Dismiss the petition
• Give interim relief

Example:

High Court stays demolition notice on first hearing.

Judgment:

State of Uttar Pradesh v. Visheshwar (1995) → Admission stage is for prima-facie assessment.

4️. Issue of Notice to Respondents

Summary:

Court sends notice to government department/authority to file their reply.

Example:

Municipal Corporation is asked to explain illegal sealing order.

Judgment:

A.K. Kraipak v. Union of India (1969) → Principles of natural justice mandatory.

5️. Filing of Counter-Affidavit by Respondents

Summary:

Government department explains its actions with records.

Example:

Police files reply showing reasons for inaction or delay.

Judgment:

Maneka Gandhi v. Union of India (1978) → Government must justify actions affecting personal liberty.

6️. Filing of Rejoinder by Petitioner

Summary:

Petitioner rebuts the government’s reply and clarifies facts.

Example:

Petitioner denies allegations about incomplete documents.

Judgment:

S.P. Gupta v. Union of India (1981) → Transparency & counter replies essential for fair hearing.

7️. Final Arguments

Summary:

Both sides argue law, judgments, rights violations, and factual issues.

Example:

Petitioner argues that the transfer order is mala fide and violates Article 14.

Judgment:

R.D. Shetty v. International Airport Authority (1979) → Administrative actions must be fair and non-arbitrary.

8️. Final Order / Judgment

Summary:

Court passes final orders:

• Allow the petition
• Dismiss it
• Give directions
• Order compensation
• Transfer case to another authority

Example:

HC directs the university to declare withheld exam results within 7 days.

Judgment:

Nilabati Behera v. State of Orissa (1993) → Compensation for violation of fundamental rights.

9️. Review / Appeal (If applicable)

Summary:

Aggrieved party can file:

• Review Petition – same court
• SLP (Special Leave Petition) – Supreme Court under Article 136

Judgment:

P. Nalla Thampy Thera v. Union of India (1983) → Review permissible only on error apparent on record.

Summary Chart

1. Approach Senior Police Officers (SP / DSP / Higher Authority)

• Under Criminal Procedure Code (CrPC) Section 154(3), if the duty-in-charge (e.g. SHO) refuses to record the FIR, you can send the complaint in writing to the relevant Superintendent of Police (SP).
• The SP has the power to direct registration/investigation or to investigate personally.
• Always keep a written copy / acknowledgement / postal receipt as proof — document date, time, officer name, complaint details.

2. File a Complaint before a Magistrate (Private Complaint)

• Under CrPC Section 156(3) (read with Section 190/200), you can directly approach a Judicial Magistrate or Metropolitan Magistrate if police refuse to act.
• The Magistrate can take cognizance, order police to register the FIR / investigate, or treat it as a complaint case and proceed accordingly.

3. File a Writ Petition in High Court / Supreme Court

• If police (even after escalation) remain inactive or refuse to register FIRs for serious cognizable offenses, you may approach the High Court under Article 226 (or Supreme Court under Article 32) to seek a mandamus / direction to police to act.
• Courts can also award compensation or take constitutional-law grounds (right to life & liberty, fair investigation) into account.

4. Human Rights / Oversight Bodies

• You may lodge a complaint before State Human Rights Commission (SHRC) or National Human Rights Commission (NHRC) if police refusal involves rights-violation (e.g. custodial issues, discrimination, serious offences) and ask for inquiry or intervention
• Some states also have Police Complaints Authorities or oversight mechanisms which can be approached.

5. Record & Document the Refusal — Build a Paper Trail

• Always demand a written acknowledgment of your complaint from the police (or note their refusal, badge/sho name, time, date).
• This documentation will help in court / magistrate / human-rights commission proceedings if police claim there was “no complaint.”

6. Use Alternative Filing Methods (if allowed)

• If local police station refuses citing jurisdiction, you can file a “Zero-FIR” at any police station regardless of territorial jurisdiction (especially in serious cases, travel-involved crimes). While codified status may vary, many courts treat complaints as valid.
• If complaint is sent by email / letter / post and contains full substance of offence, some courts treat it as valid information — especially under newer laws (or where allowed).

Key Legal Principles & Landmark Precedents

• Lalita Kumari v. Government of Uttar Pradesh (2013) — The Supreme Court of India held that once information discloses a cognizable offence, the police “must” register the FIR immediately; refusal is legally indefensible.
• Sakiri Vasu v. State of U.P. (2008) 2 SCC 409 — Supreme Court recognized that refusal to register FIR can be challenged; and that Section 154(3) CrPC provides recourse by writing to SP.
• Courts have consistently held that non-registration of FIR causes violation of fundamental rights (right to life & liberty) especially when there is unlawful detention or denial of access to justice.

Practical Steps (Checklist) for Someone Facing FIR-Refusal

1. Immediately write and submit a complaint to SHO; ask for acknowledgment → or record refusal incident (officer name, time, date).
2. If no FIR, send detailed information to SP under Section 154(3) CrPC by registered post / with proof.
3. If SP also refuses or doesn’t act → file a private complaint before the Magistrate under Section 156(3) / 190 / 200 CrPC.
4. If Magistrate doesn’t act or there’s repeated inaction → file writ petition in High Court for directions + possible compensation.
5. Optionally — lodge complaint with NHRC / SHRC / Police Complaints Authority (if available) for rights-violation / misconduct by police.
6. Maintain full records: correspondence, copies of applications/complaints, proof of refusal, time-stamps, witness names, any medical or other evidence of offence.

When Police Can Legally Refuse FIR (and You May Not Get It Registered)

• If the complaint does not disclose a cognizable offence — e.g. minor civil disputes, non-cognizable offences, or facts insufficient to constitute offence. Courts expect refusal only when complaint clearly lacks legal merit.
• If complaint is vague, frivolous or fabricated, or false — then refusal may be upheld.

Even in those cases, police must give written reasons or at least note in the General Diary (GD/SHD). Blanket or arbitrary refusal without reason remains subject to challenge

If the father already has the child in his care (interim/actual custody) and wants permanent, exclusive custodial rights, he can approach the competent court under the following laws:

1. File a Petition Under the Guardians and Wards Act, 1890 (GWA)

Section 7 – Application for Appointment as Guardian

The father can file a petition before the District Court / Family Court seeking to be declared the:

• Guardian of the person of the minor, and
• Permanent custodian of the child

The court examines what is in the best welfare of the child.

Key Factors Court Considers:

• Child’s emotional, physical, educational welfare
• Father’s financial stability
• Father’s capacity to provide safe home & upbringing
• Mother’s ability/inability to care for the child
• Wishes of the child (if above 9 years, court may consider)
• Any history of violence, neglect, addiction, or instability in the mother

2. Seek “Permanent Custody” Under the Hindu Minority & Guardianship Act, 1956 (HMGA)

If the parties are Hindu, the father may additionally claim under:

Section 6 & 13 – Natural Guardian + Welfare of Child

Father is a natural guardian (after the mother), but the child’s welfare overrides all rules.

The court may grant him sole custody if welfare favors the father.

3. If the Child is Already Living With the Father

This is a strong factor.

He can request:

Confirmation of existing custody

Permanent custody order

Conditions for mother’s visitation (if required)

Court generally does not disturb a stable, healthy custody arrangement.

4. If Mother Abandoned the Child or Not Taking Responsibility

The father may additionally seek:

Declaration that mother is unfit (only if there is evidence)

Restriction or supervision of her visitation rights

Sole decision-making authority regarding education, health & travel

5. Filing Procedure

1. Draft & file Guardianship and Custody Petition
2. Attach evidence:
   1. School records
   1. Medical records
   1. Proof of father’s income/stability
   1. Proof mother is not taking responsibility (if applicable)
3. Court issues notice to mother
4. Court conducts hearing, interviews child (if applicable)
5. Final order granting sole permanent custody

6. Landmark Judgments Supporting Sole Custody to the Better Caregiver

Here are important judgments where courts gave sole custody to one parent on welfare principle:

1️. Gaurav Nagpal v. Sumedha Nagpal (2009)

Supreme Court held → Child’s welfare is supreme, not the right of parents.

2️. Roxann Sharma v. Arun Sharma (2015)

Court emphasized → Custody must go to the parent providing a more stable & safe environment.

3️. Vivek Singh v. Romani Singh (2017)

Court allowed sole custody to the parent with proven emotional bonding.

4️. J. Venkatachalam v. J. Saritha (Madras HC)

Child already living with one parent → Court usually continues that custody.

Summary: Remedy for Father

File guardianship + permanent custody application

Show welfare, stability, education, emotional bonding

Seek sole custody + limited/supervised visitation for mother

Use evidence to prove child’s welfare is best with father

�� 1. General Rule under Hindu Law

Under the Hindu Succession Act, 1956 and general principles of Hindu law:

A wife has no right to claim a share in her husband’s self-acquired property during his lifetime.

Self-acquired property is the exclusive and absolute property of the husband, and no other family member (including wife, children, or relatives) can claim a share unless:

• Husband dies intestate (without a Will)
• Husband voluntarily transfers/gifts a share

This is a well-settled principle in Indian property law.

�� 2. Statutory Basis

A. Hindu Succession Act, 1956

• Gives wife rights only after the husband’s death, not during his lifetime.
• Wife becomes Class I heir u/s Schedule – Class I Heirs.

B. Hindu Minority and Guardianship Act, 1956

• Husband/father is natural guardian of minor children.
• Does not give wife a right in husband’s property.

C. Married Women’s Property Act, 1874

• Wife’s property remains exclusively hers.
• Husband’s self-acquired property remains exclusively his.

D. Domestic Violence Act, 2005

• Gives wife right of residence,
  but not ownership rights in husband’s self-earned property.

�� 3. Key Legal Distinction

�� 4. Important Supreme Court Judgments

1️⃣ Arunachala Gounder v. Ponnusamy (2022, SC)

Principle:
Self-acquired property is the absolute property of the owner.

“No family member has a right in self-acquired property of a living person.”

This applies to wife as well.

2️⃣ S.R. Batra v. Taruna Batra (2007, SC)

Topic: “Right to residence vs. ownership”

Held:

“Wife has a right to residence but no right to claim ownership in husband’s property.”

Even if the marriage is long, she cannot demand partition.

3️⃣ Neelam v. Ram Asarey (2014, SC)

Held:

“Maintenance does not create proprietary rights in husband’s property.”

Thus, maintenance ≠ share in property.

4️⃣ Shamim Ara v. State of U.P. (2002, SC)

Though related to maintenance, the Court clarified:

“Length of marriage does not create property rights.”

Even 25–30 years of marriage gives no automatic share.

5️⃣ Ramesh Verma v. Lajesh Saxena (2017, SC)

Held:

“Wife gets a share in husband’s property only after his death, if he dies intestate.”

Till then, the property remains exclusively the husband’s.

�� 5. When Can Wife Actually Get a Share? (Two Scenarios Only)

✔ 1. On the husband’s death (intestate succession)

She becomes Class I heir and shares property equally with:

• Children
• Mother of husband

✔ 2. If the property is converted into joint property

If husband:

• Makes wife co-owner
• Executes gift deed
• Adds name in sale deed

Only then she gets a legal share.

�� 6. Situations Where Women Often Get Confused

❌ “25 years of marriage → equal share”

Incorrect. Marriage duration does not create ownership rights.

❌ “Wife lives in husband’s house → shares”

Incorrect. Residence ≠ ownership.

❌ “Wife contributed to household → ownership rights”

Incorrect under Indian law, except in exceptional equity cases during divorce alimony.

�� 7. Practical Rights Available to a Wife

While she cannot claim a share, she can claim:

✔ Maintenance (Sec. 125 CrPC / HMA / Personal laws)

✔ Right to residence (DV Act, 2005)

✔ Protection from eviction

✔ Alimony on divorce (can be substantial)

✔ Share after husband’s death

But ownership in self-earned property during husband’s lifetime = NO.

�� 8. Conclusion (Exam/Interview + Advocate Answer)

A Hindu wife has no legal right to claim a share or partition in her husband’s self-acquired property during his lifetime, irrespective of the duration of marriage. She only has rights of maintenance, residence, and succession after his death. The Supreme Court consistently upholds this rule.

Child custody battles become especially sensitive when the child is very young. Under Indian law, a child below five years is generally presumed to need the care, affection and emotional support of the mother. This principle is widely recognized under the Hindu Minority and Guardianship Act (HMGA), 1956, as well as by multiple court judgments.

But what happens when the father has kept the child and files a case seeking permanent custody?
Does the mother still have strong legal remedies?

The answer is YES—the mother has several powerful remedies under both civil and criminal law.

This blog explains all possible legal options available to a mother in such situations.

1️⃣ File for Immediate Custody Under the Guardians and Wards Act (GWA), 1890

The first and most important remedy is to file:

✔ Petition for Custody + Interim Custody (Section 7 & 12, GWA)

The mother can file a separate petition before the Family Court seeking:

• Permanent custody
• Interim custody (urgent temporary relief)
• Visitation rights if interim custody is not granted immediately

Why this is powerful?

Courts follow a general rule:

A child under five years should ordinarily be with the mother, unless she is proven unfit.

Therefore, the mother has a strong chance of getting interim custody quickly.

2️⃣ Seek Immediate Pick-Up / Interim Restoration of Child

The mother can request the court:

✔ “Pick-Up Order” / “Restoration Order”

If the father has forcibly taken the child, withheld the child, or is preventing contact, the court can order the child to be:

• Produced before the court
• Handed back to the mother temporarily
• Shifted to the mother’s custody until trial

Family courts frequently grant such urgent relief, especially for children under five.

3️⃣ File a Habeas Corpus Petition in the High Court

If the child is being illegally detained by the father and not produced before the mother, she can file:

✔ Writ of Habeas Corpus (Article 226, Constitution of India)

This is used when:

• The father refuses to allow the mother to meet the child
• The child is kept in a hidden location
• The father took the child suddenly or without consent

High Courts treat minor children as persons who cannot decide for themselves, so illegal custody can be challenged through a habeas corpus petition.

This often results in very fast relief.

4️⃣ File a Complaint for Child Removal or Kidnapping (in extreme cases)

If the child was taken forcefully, secretly, or in violation of a court order:

✔ Section 97 CrPC – Search Warrant for Recovery of Child

A Magistrate can issue a warrant to produce the child immediately.

✔ Kidnapping from lawful guardian (Section 361 IPC)

A father may commit an offence only if:

• He takes the child away from the lawful guardian (the mother),
• Without consent, AND
• With the intention to deprive the lawful guardian of custody.

This remedy is used rarely and only in serious cases.

5️⃣ File for Visitation and Contact Rights Immediately

Even if permanent custody cannot be granted instantly, the mother should file for:

✔ Regular visitation

✔ Video calls

✔ Weekend or overnight access

Courts believe that both parents should remain connected with the child.

This helps in two ways:

1. The bond between mother and child is preserved.
2. It prevents the father from creating distance or alienation.

6️⃣ File for Maintenance for the Child (and for Herself if Eligible)

The mother can file for:

✔ Child Maintenance (Section 125 CrPC / Personal Laws)

Even if the father is keeping the child, the mother is still entitled to:

• Her own maintenance
• Separate child maintenance, if the child stays with her even part-time

Financial security strengthens the mother’s overall custody case.

7️⃣ Prove the “Welfare of the Child” Standard

All custody cases revolve around:

What is in the best interest and overall welfare of the child?

The mother should highlight:

• Emotional bonding
• Breastfeeding needs (if applicable)
• Stability and safe environment
• Schooling, health, and routine
• Father’s neglect, violence, or instability (if any)

Courts prioritize younger children staying with the mother unless exceptional circumstances exist.

Key Case Law: Mother’s Preferential Right for Child Under 5

Courts have consistently held:

A young child (below five) should naturally be with the mother unless proven otherwise.

This principle strengthens the mother’s position significantly.

Final Thoughts

If the father files a permanent custody case for a child under five, the mother is not helpless. She has multiple legal avenues—fast and effective.

Her main remedies include:

• Petition for custody
• Interim custody / pick-up orders
• Habeas corpus in the High Court
• Visitation and contact rights
• Maintenance
• Criminal remedies (in extreme cases)

With the right legal approach, courts generally favour placing a very young child with the mother.