Answer By law4u team
Custody cases involve sensitive issues regarding the care and upbringing of children. Any delay in such cases can severely affect the child's emotional and psychological well-being. Courts are expected to handle these matters promptly, but due to various reasons—like judicial backlog, procedural lapses, or lack of cooperation between parties—delays happen. Fortunately, there are legal remedies and procedural tools available to counter such delays and protect the rights of both the child and the parents.
Remedies Available in Case of Delay in Custody Cases
1. Petition for Speedy Trial
Parties can file a petition under Article 21 of the Constitution of India, citing the fundamental right to a speedy trial. The delay can be challenged in High Court or Supreme Court if it violates the rights of the child or the parents.
2. Interim Custody Application
Even if the final judgment is delayed, an application for interim custody under Section 12 of the Guardians and Wards Act, 1890 or under relevant provisions of the Hindu Minority and Guardianship Act can be filed to grant temporary custody in the child’s best interest.
3. Habeas Corpus Writ
If a child is wrongfully confined or retained by one parent and not produced in court, the aggrieved parent can file a writ of habeas corpus in the High Court to ensure the child is produced and the case is expedited.
4. Application for Early Hearing
The party may file an application before the family court requesting an early hearing date or priority listing due to the sensitive nature of the matter.
5. Approach Higher Judiciary
If the trial court is consistently causing delays, the party may approach the High Court or Supreme Court under Articles 226 or 32 for necessary directions or transfer of the case to another court.
6. Use of Mediation or Lok Adalat
To speed up resolution, courts often refer custody disputes to mediation centers or Lok Adalat for amicable and quicker settlements.
7. Contempt Petition
If one party is deliberately causing delays by avoiding court proceedings or violating orders, a contempt petition can be filed under the Contempt of Courts Act, 1971.
8. Supreme Court Guidelines
In several cases (like Gaurav Nagpal v. Sumedha Nagpal), the Supreme Court has emphasized that custody matters must be resolved promptly. Such judgments can be cited to press for early resolution.
Example
Scenario:
A father has filed for custody of his 6-year-old son after separation from his wife. Despite multiple hearings over the last 18 months, the family court has not issued any final judgment. The child remains with the mother, and the father is not granted even interim visitation rights.
Steps the father can take:
File an interim custody and visitation application under Section 12 of the Guardians and Wards Act.
Submit an application for early hearing citing the mental and emotional impact on the child due to prolonged separation.
Approach the High Court with a writ petition under Article 226 demanding a speedy trial, invoking Article 21 (right to speedy justice).
File a habeas corpus petition if the mother is denying even agreed visitation or hiding the child's whereabouts.
Cite landmark Supreme Court judgments in support of speedy disposal in custody matters.
Request mediation through court for a quicker, mutually acceptable solution.
Monitor proceedings actively and ensure attendance in all hearings to prevent adjournments.
