• Child custody and property saving after divorce

Hi Ajay,

I want to file for divorce, but before I proceed with the legal procedures, I want your advice on few of my Queries/legal matters relating to my Child Custody & property. 
Queries: - 
1.	Firstly, in regards to my child (5years), how can I get the custody of my child? My spouse is working.  
2.	Secondly, I had purchased property after my marriage one flat in in my Name and I have been paying all installments and EMI’s for it & the other (2nd) flat under construction is jointly shared by my Mother and Me (50 – 50 Share).
a.	How can I protect my both the properties from not getting transferred to my spouse. She is working and has not paid any amount for any of the flat.
b.	By transferring the flat in name of my mother as a gift would I be able to protect my property?

Thanks,
Prashant.
Asked 2 years ago in Property Law from Greater Noida, Uttar Pradesh
1) you will have to make application for child custody . welfare of child is paramount consideration . 

2) custody is generally awarded to mother . you will get visitation rights 

3) your wife has no ownership rights on your property . she can claim right to stay in matrimonial home only 

4) you can execute gift deed in favour of your mother . have it duly stamped or registered 

5) in the alternative you can sell the property
Ajay Sethi
Advocate, Mumbai
23383 Answers
1228 Consultations
5.0 on 5.0
Hi,
1. You should file divorce and ask for the custody of the child. Up to five years custody is allowed to the mother but after that it is on the basis of the merits of the case allowed to the deserving parent who can take care of the child best way.
2. if your wife is  working and capable of maintaining herself there can be no maintenance, however she can ask for an accommodation, shared or separate.
3. If the child is with her she can ask for the maintenance for the child.  
4.Once the matter is in the court try to settle it amicably as it would help you both regarding the ustody, visitation and alimony, to reach to a final decision and divorce absolutely and finally.
5. The gift deed is a good option as there is  a chance wife can get  50% of rights in  husband's  property right in the near future if the bill is passed and law come into force.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
1) You can certainly apply for the custody of the child. As the child is five years of age custody may be granted to the mother with visitation rights to you.
Once goes past this age you will need to approach the court again for custody and taking into consideration the welfare of the child the court will pass an order.
2) If you succeed in establishing that the mother would not be able to take good care of the child you can win custody.
3) Transfer by gift deed to your mother would be the best way to protect your interest in the property though wife has no right in your property. Future legislation it's capable of awarding 50% right in Proprty to the spouse on divorce.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
Hi, for the custody of chaild you to file an application before the court but under normal circumstance custody of child will be handed over to mother and secondly your wife is entitled to maintenance and she has no right to claim property of yours and she is working so chance of getting maintenance is also limited but it is depending upon fact and circumstance of the case.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Normally custody of children upto 5 years are awarded to mother being the natural gusrdian. After he/she crosses 5 years, you can file for his/her custody & child's welfare is paramount while deciding on his/her custody,

2. Since the flats are either in your name or in joint name with your mother, your wife will have no claim on those properties. So, relax on this account,

3. She can claim alimony, maintenance, right of accomodation but not share of husband's or in laws property.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. You have not mentioned as to whether the child is currently in your or your spouse's custody. In order to get the custody of your child you have to file a case for child custody in the court. The custody of a minor is generally awarded to the mother, but this is not a rigid rule which applies to all cases of child custody. 

2. That your spouse is working is no ground under the law of the land to defeat your right to child custody. 

3. As per the existing law the wife has no share in the properties owned by her husband. Her proprietary rights are confined to those properties which are purchased by her and her husband jointly after the marriage. So you do not need to worry about your properties. 

4. In view of the fact that she is working she is not entitled to claim any alimony or maintenance. 

5. You are at liberty to execute a gift deed in favour of your mother. The same should be stamped and registered in accordance with the law.
Ashish Davessar
Advocate, Jaipur
18256 Answers
450 Consultations
5.0 on 5.0
You need to file petition for the same.It is also established that custody of children can be given even to the guilty party.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
The custody of minor children particularly of children under 5 is given to the mother. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs is the only criteria.

Whether she is psychologically fit to rear the child or whether the psychological growth of the child will be better if the custody is given to the father, raise relevant factors to which more judicial attention could be usefully given.

Your wife will have not succeeded in claiming on properties, but has claiming maintenance and right of accommodation
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0

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