• First a DV and subsequently a RCR filed by my ex wife

Dear Sir 
Need a little opinion on the below case 
walks out of the house on her own free will . 2010
divorced my x-wife in the year 2010 thru a talaknama and a lawyers notice . She refused to acknowledge the same .  files a complaint in women cell stating harassment and being thrown out of the house . . few days later withdraws the complaint . all is settled mutually you live your life i live my life free to marry any one .

I got remarried thru court . hold a valid certificate . 

2 yrs down the road 2012 my x- wife files a DV case against me . stating the same allegations of harassment and being throne out of the house so that i could remarry along with the usual DV allegations . 

In 2013 she files custody of child - I have 2 children thru her.-  age 15yr and 18yrs .  and along with this a RCR .

my present stage is i am under a cross examination .

Request if i could get some guidance on this . And as a third person some opinion 

Appreciate for all your time 

Asked 3 years ago in Family Law from Delhi, Delhi
Religion: Muslim
1) no dv case is maintainable as divorce has  taken place in 2010 . it is well settle law that no DV case is maintainable after divorce . 

2) child of 18 years is a major . he can decide whether he wants to stay with father or mother . 

3) The custody of a minor child in Islam is called Hizanit, which literally means the care of the infant. As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Thus under the Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain majority on attaining puberty.

4)  Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the G&W Act also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed.

5)  Hon’ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, which held that “the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act. If a Court does not keep that in view it would be acting illegally and with material irregularity  “

6) welfare of child is the paramount consideration in deciding issue of custody of minor children
Ajay Sethi
Advocate, Mumbai
46910 Answers
2775 Consultations

5.0 on 5.0

1) Being a Muslim your talak was legal and your wife ceased to be your wife in 2010 and of course you are free to marry hence.
2) In consequence there can not lie any DV case as it is not maintainable under circumstances and ought to be dismissed by the court.
3) RCR therefore is totally unreasonable.
4) As per Sharia Law ,the Muslim personal law the children are od 15 and 18 years of age the custody petition moved by your former wife would never go in her favour.
S J Mathew
Advocate, Mumbai
2264 Answers
110 Consultations

5.0 on 5.0

Dear Querist

as per your talaaq and remarry, both are valid nobody can challenge the same. if talaq is as per quran and you paid all her Mahr and Iddat period maintenance, if you did not pay the same then the talaaq is not valid.

D.V. case is not maintainable if filed after 1 year of the incident and she left the matrimonial home before 1 year of filing the case.

RCR has no value and liable to be dismissed due to talaaq.

The child custody for 15 years child is valid but she can not claim the custody of 18 year child which is not minor.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
4880 Answers
226 Consultations

4.9 on 5.0

1. No. the said DV case filed after 2 years of divorce will be rejected since no DV case is maintenable after divorce,

2. As per Muslim personal law, you shall have the custody of your 15 years old child and your elder child will decide with whom he/she will stay,

3. Children's welfare will be prime consideration while deciding about child's custody.
Krishna Kishore Ganguly
Advocate, Kolkata
18818 Answers
454 Consultations

5.0 on 5.0

1. DV case cannot be filed after divorce has been finalized. Furthermore, the delay of 2 years in filing the case is fatal to her case and goes on to reflect that the case has been filed in order to harass you through the instrument of law. 

2. You should have moved the High Court for quashing of the DV case. It is an opportunity you lost.

3. As regards the custody of child, your child who has attained the age of majority can elect to stay with any parent he/she desires. The issue of custody of the 15 year child will be decided on merits by the court having regard to his/her welfare. The Muslim Personal Law will be applicable to your case.

4. You have remarried after talaq. She agreed to talaq with her own free will. So RCR will not help her cause now.
Ashish Davessar
Advocate, Jaipur
23180 Answers
641 Consultations

5.0 on 5.0

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