My wife lives separately with my two kids (4.5 years old and 1 year old). She is working in private bank. She didnot live with me. She said she wont give divorce and wont give kids as well. If she is enquired about this, she put drama that she is willing to live with me and she demands that I should get transfer to her place by leaving my old age parents. Now we are separated for 3 months. How long can she play like this? I took care of my first son for 2 years (aug2013 to mar2017). For the period 2015-2017 she just come to home (put attandance that she is present- maybe she is aware of this formalities) and see my first son and she will leave. Mean time second son is with her only. One day she came and took away her first son stating that mother is the natural guardian. After then she gave police complaint. She asked 3 months time to come home. Now 3 months over. Shall I send notice. All are mentioning that I may get only visiting rights over my beloved kids. Is there any possibility of getting legal rights to one child now or after his completion of 5 years of age? .. atleast. How long she can play like this? Is there not any end to this?
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
Hello,
You are the natural guardian of the baby boy and hence you have the right to claim custody, you can file an application under the guardianship and wards act On the first date you might get an interim relief which extends to visitation rights however you might get the custody on final disposal of the case.
Regards
You can file petition for restitution of conjugal rights under section 9 of HMA if you want your wife to stay with you
2) also seek joint custody of children
3) court would award you visitation rights
4) contact a local lawyer
You can send notice of restitution conjugal rights to join you along with the children if you are willing to stay with your wife. Generally the child will be permitted to stay with mother and as you noted visiting rights will be given to father. in normal course the children will be with the mother until they attains their age of majority and thereafter it is up to the children. Better to take her family counselling centre for counselling since there seems no major or serious issue to live separate. Her parents and relatives may influenced her.
1. You shall have to submit evidence in support of your allegation that she is playing a game with you.
2. It is a fact that mother is the natural guardian of her child upon his/her 5 years of age.
3. Collect evidence in the form of audio/video recording to prove her act of cruelty on you specially her demand that you shall have to abandon your old and ailing parents as a precondition for staying with her.
4. As per the observation of Supreme Court, forcing husband to leave his old and ailing parents is considered as form of cruelty.
5. After collecting the said evidence of cruelty, file the divorce suit on the ground of cruelty.
6. You can file a child custody case after your son crosses 5 years of age submitting evidence that his custody should be handed over to you for his welfare.
1. Since the kids are tended aged and in the custody of mother it is most unlikely that they will be uprooted from her. So the logical conclusion is that you will get visitation rights only.
2. Nothing stops you from presenting a petition for dissolution of marriage on the ground of cruelty.
Hi, It is better you can file a petition for restitution of conjugal right in the court and request the court direct your wife to live with you. If she fail to oblige the order of the court then it would be one of the ground for divorce.
Sir, apply for restitution of conjugal rights with jurisdictional court.
thanks,
adv.niranjan,
mobile - .
If she is not willing to give divorce on mutual consent grounds, you may file a contested divorce on the grounds of mental cruelty.
You can file a child custody case for both the kids.
You may put forth strong arguments in the child custody case, let the court decide the further course of action as per law.
You can file a petition for visitation rights also.
You discuss the issue at length with your lawyer and proceed.
Now I have filed HMOP case on [deleted]. Case is in combined sub-ordinate court as there is no family court present i her jurisdiction. First hearing was on 27-2-2018 (date given by my lawyer). I website It is mentioned as 26-2-2018. I came to know that my wife received first notice sent by court. In hardcopy of mine and my wife the date is mentioned as 27-2-2018. I went to court on 27-2-2018. Came to know that my case was read on 26-2-2018 and court put it aside because both petioner and respondent not turned up to court. My lawyer and her lawyer informed about the miscommunication of the cout and court accepted and petition opened on 27-2-2018. My wife didnt come. Instead her advocate filed vakkalat and case referred to mediation on 24-4-2018. I sent divorce notice and my wife is also didnt ask for mediation as well. Then on 24-4-2018 I went to court for mediation. My wife didnot come. Her advocate informed that hard copy of the summon was not served to my client, so my client didnot know this. Again court referred to mediation on 17-7-2018. My lawyer informed this. Judge didnot even call me to prove my presence there. How long my wife keep on extending the case? She didnot even file counter against me. I think she is not willing to live with me and also want to ruin my life also. Kindly assist me how this case will proceeds. If she keeps on not coming to court means what will happen. Are there any chances of getting my sons back? My first son is five years old after may 2018. Now it almost three years breakup now. Complete no communication itself from april 2017. Will i get divorce?
If wife does not attend court nor files reply you would get exparte decree
2) you should seek custody of your son
3) court would award you visitation rights
The court case will happen this way and one has to undergo all such ordeals.
This is just beginning.
Since both the parties (even represented through their respective lawyers), appeared in the matrimonial dispute case, the court will first send them to mediation for reconciliation of differences between them, if any.
After the mediation fails, the court will resume the proceedings.
If she is not appearing before the mediation during the next hearing, the case may be reverted to regular court for trial.
She would be asked to file her counter after that
This is routine, since it is a matter being tried by sub-court, due to its heavy burden, the court dates would be very long.
For child custody you may have to file a separate petition before the district court, you may not get any relief in this case.
1. Serve notices on her as perv rule and even after receiving the notices she abstains from attending the Court, then ask your Advocate to strongly ask for ex-parte hearing.
2. After your elder son crosses 5 years of age, you can pray for his custody on the ground that his custody with you will be for his welfare, duly showing grounds/evidence in support of your said claim.
3. Till then you can exercise your child visitation right by applying before the Court for an appropriate order to that effect.
Hello,
Yes you will get divorce.
If she does not come to the court then the court will proceed ex parte to pass an order.
Regards
Thank you honorable advocates for your valuable suggestions. Now mediation process completed and mediation failed. She files counter on 8-1-2019 that is after one year (case started on [deleted]). She mentioned that we demanded dowry and me with my mom and dad tortured her. Next enquiry is on end of this month Jan 2019. My advocate told that we should give counter for the matter she had given. 1) I thought to ask child rights now. My first son is 6 years old and second son is 4 years old 2) She demanded to write off the case, advocate fees charges myself have to bear and she told that she will get transfer and come. I have to wait until she get transfer (which she won’t come. She wants to simply drag the case) 3) I have evidence that she told nice about my parents once. She demanded separate home. Will those support me and get me divorce. 4) She wants me to get trapped in dowry and torture case and arrest. Is it possible?
1) wife forcing husband to stay separate from parents amounts to mental cruelty and is ground for divorce
2) you can seek visitation rights of your children
3) wife can seek litigation costs
4) if wife files false dowry harassment apply for and obtain anticipatory bail from sessions court
5) burden of proof is upon prosecution to prove allegations beyond reasonable doubt
If she decides to wreak vengeance she may initiate steps to lodge false criminal complaint for dowry demand and harassment.
In that event you may first obtain AB and challenge her false case in trial proceedings.
You can file child custody case to put pressure on her.
In fact after having gone through all these legal cases it may not be possible for her to successfully file a dowry harassment case at this stage.
1. You can also file a petyition praying for custody of your child who is above 5 years of age for his welfare.
2. Since she is employed, she is not entitled to any maintenance and/or cost for contesting the case filed by you.
3. If you can prove that she insisted that you shall have to leave your old parents to continue to stay with her, then it will be considered as an evidence of cruelty on her part based on which decree of divorce can be sought.
4. If she lodges any police complaint u/s498A of IPC and the police registers FIR against you and your family members based on the said complaint, then first of all all the accused shall have to avail anticipatory bail from the Court and then contest the said case fittingly.
Thank you for your valuable guidelines. Actually I have one doubt. I have filed the case and started the case. She didn't mention any dowry case in her previously filed police complaint. Now by the end of this month enquiry procedure is there in court. Am I still have to take anticipatory bail if she lodges police complaint. I think if she files any new complaint now and if police enquiry comes we shall mention the case is going on in court. We shall see there. Correct me if I am wrong
as on date no dowry harassment case is filed by wife
2) if any FIR is filed police would issue you notice to record your statement
3)you can in your statement mention that you have already filed for divorce and wife has filed 498A case as counter
If she's lodging a criminal complaint once again then you may have to obtain anticipatory bail again.
The police will not listen to what you may try to convince them, instead they will insist on their predetermined decision, hence you don't waste time trying to explain them anything.
You may better take the advice of your advocate on all such further issues.
1. In your first posting you had mentioned "After then she gave police complaint ".
2. In this post you have mentioned "Now by the end of this month enquiry procedure is there in court.". What enquiry procedure is there in your divorce proceeding?
3. However, anticipatory bail is to be availed by all the accused if and only if, FIR is registered by the Police based on the complaint lodged by your wife u/s498A of IPC or any such no-bailable section of IPC.
You are right. no need to go for AB at this stage