• Divorce and child custody

After 10 years of unsuccessful marriage and continuous trails of compromise, finally i have decided to separate from my husband as he is not ready to consider me as a wife due to his friend who is having a relationship(as observed by me) with him. According to society there is no bad remark about him but after knowing the truth about him being a heart patient and gay (as told by Psychiatrist after only one session he attended to show me as mentally unfit found himself trapped and after that he denied any more sessions out of fear),and emotional abuser i tried coping up for my 2 children sake for 10 years with help of his relative, parents, doctors (psychiatrists, counselors) etc. but everything was in vain .He is not ready to let me be a financial independent woman and forcing to cut off all relation with my parents, even when i had accepted him the way he is ,he is not ready to accept me. Due to not giving respect to his friend, that person created a big bridge between us to such an extent that hurting me is the only sole work he does and also had physical relation with me for getting the kids and to hide his orientation after my 2nd child (boy) it’s been 8 years now we had no physical relationship. Also all the property has been shared or joint by his friend. He has started his own building firm jointly with him in Bangalore of which I got to know after several months though I was staying in the same house. I had to beg money from him even to buy something for kids. He dint wanted to show me as his wife anywhere.

I have no proof to prove and the other members of family who are the witness will not support me and have remained silent knowing the truth. I had taken his elder brother with me to the psychiatrist to let him know the truth but he did not bother to do anything with it. His friend is ready to cooperate like my husband but my husband is not ready (the actual person who has to lead the life with me). My husband hates touching him, he thinks I am not eligible to touch him also. 

I had come to Mysore as I was ill with typhoid during Dasara vacation. My husband and his family members had a condition that if I need to come back I need to cut off all the relationship with my parents and return everything given by my parents. As he was an abuser and the fear that he would separate me from the kids, I decided not to go. For the welfare of the kids, education I had to go to my in-laws house without informing them as all of them are manipulators and took the important documents necessary for the admission of new school. They are well settled and doing well in their studies. Also when I went to my husband's house (Bangalore ) to bring my necessary clothes, I had called him to inform, he verbally abused me and called me a thief, trespasser and not to touch any of the things . He called many times to stay in the bus stand itself but out of fear I came with my father and after that he told that to consider that he has no relation with him anymore and would send all the things related to me to my house. He had sent all the things only related to me and not children stuff in a goods auto even without packing it properly.

I want to know in this case will i be given the child custody physically and legally of the girl child(11 yrs) and the boy child(7 yrs) to me as I feel its not a good environment to grow with him because...,my daughter was forced by my husband to call his friend as PAPA and even the children are not ready to go back. I and my children are staying with my parents currently and its been already 2 years since I have separated from him and till date there is no contact or even a try reaching us as he has spread the rumors that I have run away with the kids and I am eyeing on his money. His friend alone is trying to negotiate as he is the reason for our strained relationship. His friend , my mother -in-law are supporting my husband in all his deeds indirectly, by which my life was a total hell and disaster.

He is just the puppet in his friend's hands, an emotional abuser, great actor and is not interested anymore in me or my children. Only that friend through one of my husband's uncle is trying hard to make me come back only for the sake of kids as he had challenged me to bring down and torture me and had openly said that he will not leave my husband to me for having a healthy relation. My husband family played a double game with me and did not support me in anything.

As Psychiatrist suggested me and my parents to support me to leave independently, I took a decision and came out as he was not ready to neither talk with my parents nor attend any counseling also. He is just an educated illiterate orthodox dominating Brahmin and wants me to be like a 19th century women who just have to work like a slave with no contact with the society.

I have tried all means of settling it but did not work out. I am not doing this for any alimony or with some bad intention . The only sole reason of this decision is to have good environment for my kids and independence from him.  I also want to leave this unsettled as it is...but my relatives and friends are frightening me that after few years he may file a case for custody of children one fine morning which may put me and my children under trauma and legal procedures.

Please guide me as I am in confusion and fear that as he is more financially stronger than me , a good actor of being a gentleman in public, the crooked friend would not allow for mutual consent .I want to settle this please advice without going legally. I do not want any alimony but just a settlement like he must not come in future for seeking the children and trouble me. After 10 years of unsuccessful marriage and continuous trails of compromise, finally i have decided to separate from my husband as he is not ready to consider me as a wife due to his friend who is having a relationship(as observed by me) with him. According to society there is no bad remark about him but after knowing the truth about him being a heart patient and gay (as told by Psychiatrist after only one session he attended to show me as mentally unfit found himself trapped and after that he denied any more sessions out of fear),and emotional abuser i tried coping up for my 2 children sake for 10 years with help of his relative,my parents,doctors (psychiatrists,counselors) etc. but everything was in vain .He is not ready to let me be a financial independent woman and forcing to cut off all relation with my parents, even when i had accepted him the way he is ,he is not ready to accept me. Due to not giving respect to his friend, that person created a big bridge between us to such an extent that hurting me is the only sole work he does and also had physical relation with me for getting the kids and to hide his orientation after my 2nd child(boy)its been 8 years now we had no physical relationship.Also all the property has been shared or joint by his friend. He has started his own building firm jointly with him in Bangalore of which I got to know after several months though I was staying in the same house. I had to beg money from him even to buy something for kids. He dint wanted to show me as his wife anywhere.
Asked 2 years ago in Family Law from Mysore, Karnataka
1) you should file for divorce on grounds of mental cruelty . 

2) seek custody of children  and maintenance for children 

3) if you are not working you will also be entitled to maintenance . 

4) in said divorce petition mention that your husband is gay and is in relationship with another man 

5) in the event you dont want divorce file Dv petition and seek alternate accommodation from your husband 

6) also seek compensation for mental torture you have undergone 

7) your husband will compromise with you as he would not want his being gay made known to public at large
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
If you are separated from your  husband for more than 2 years now and he is not supporting you financially as well or in the upbringing of the kids, then going by the narration of your facts if you are able to show to court if at all he files a custody case that her is gay and had never been a responsible parent then it is unlikely that the court will grant him the custody of the child. 

However to be on a safer side file for divorce on mutual consent. You can claim the custody of children and financial support along with the divorce petition. 

If he is not ready for a mutual consent divorce giving custody of the children to you then file a contested divorce on ground of  mental cruelty etc. File a maintenance petition along with it seeking child custody as well.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. You can file divorce petition on the ground of cruelty also praying for child custody,

2. You should also file a DV case praying for maintenance for yourself and your children, alternate accomodation etc.,

3. To force your husband to agree to execute mutual consent divorce you should file complaint case u/s498A of IPC,

4. Your divorce application can finally be converted to MCD, if he  can be made to agree,

5. You can cite the fact that he is a gay while filing divorce petition which he may like to be kept as secret and may agree to sign the MCD.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. You are at liberty to file for divorce on the ground of cruelty citing the fact that your husband is a gay. However, I hasten to add that the fact that he is a gay should be shown as a ground only in the event that you can prove it, failing which you can be prosecuted for defamation.

2. You can also seek the custody of your child on account of the fact that the welfare of child demands that he be entrusted to your custody. 

3. You can claim maintenance for your child. If you are not earning then you also qualify under the law to get maintenance form him. You can also file a case under domestic violence law to claim right to residence and compensation for the harassment suffered by you at his hands.

4. If your husband agrees to part ways amicably then you may together file for mutual divorce wherein there need not be a mention of the fact that your husband is a gay.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
You can file for divorce on the ground of cruelty and seek for maintenance and for child maintenance. he is liable to pay for their education. 

You can file case in Mysore (your place of present residence or in Bangalore where you last resided together.

it is also advisable to send legal notice to him before initiating legal action. Give him last opportunity and call upon him to mend his way either by taking care of you or agreeing to pay one time alimony or monthly maintenance. and relinquishing the guardianship right and visitation right.

Hire a Lawyer to handle this issue professionally and pragmatically. You have lost enough time already.
Sandeep Hegde
Advocate, Bangalore
361 Answers
97 Consultations
4.8 on 5.0

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