• Can not access child, threats of 498A, DV, Defamation

Got married in 2009. Have a 5 year old boy. Live in parents 
house, in a different floor where my parents live. 
Marital dicrod was there from the very beginning. Since last 5 years my wife 
does not maintain any social and conjugal life with me. My child is alienated
from me and my parents. My wife does not listen to my suggestions 
regarding my son, he is underweight, he is metally abused and even physically 
tortured.I was under an extremely painful condition already. I had 
to take my meals form outside since last one year. Since 1st Spetember
I moved to another floor and started taking meals with my parents.On this,
my wife, though leaving in the same house, does not allowing me 
to meet my son. I approached childline, they visited my home and 
recommended me to appeal CWC. I did so last Saturday, but yet to 
receive any response. Please suggest what to do? I want full access
of my child as a normal father, but I living my wife is unbearbale for
me.
Asked 6 years ago in Family Law
Religion: Hindu

3 answers received in 30 minutes.

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43 Answers

File for divorce on grounds of mental cruelty

2) seek sole custody of your child

3) mention that wife abuses son and does not give him proper meals

4) court would award you visitation rights at least

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1) You can offer wife alternative accommodation and maintenance

2) Your wife has no rights on property standing in names of your parents

3) parents can seek court orders to wife to vacate portion of house in her possession

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Contact a local lawyer and seek court orders as advised herein above

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

You file divorce on the ground of cruelty and file the sole custody of the child.

You wife has no right on the property of your parents.

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

A police complaint will be of no use, better that you file a custody petition and get visitation rights as an interim measure at least.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

If your son has gone with his mother to maternal grand parents place during vacations you cannot say your son is missing

You have the file application for custody of your child in family court

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

File a petition seeking custody of your child under the guardianship and wards act and also pray that you also appointed as the guardian. Plead that the child is not being looked after property as a result he's suffering from health and educational hazards.

You'll be granted visitation rights as an interim measure.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

1. You shall have to file a case before the court seeking to establish your right to visit your son who is staying in the same house with his mother.

2. You also shall have to decide whether you wish to continue having your matrimonial relationship with your wife or not.

3. If not then you can file a divorce suit against her on the ground of cruelty even if both of you live in the same house.

4. Collect all irrefutable evidence of your wife's cruel acts on you first after which you should file the above mentioned divorce suit against your wife.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. It does not make any difference if you live in the same house but different floor with your parents.

2. Divorce suit can be filed against wife even if she is staying in the same room.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. You can take up a new accommodation and inform your wife to join you there which she will definitely ignore.

2. Your parents can then file an eviction suit against her seeking her eviction since her husband being your self does not stay in that house.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1. Missing diary with police will be meaning less.

2. Police will inform you where he is and also file a case against you under section 211 of IPC for lodging false complaint for causing damage to your wife knowing very well that your son is with her mother at her parent's place.

3. You shall have to file an application for enforcing your visitation rifght as advised in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Lodge child abuse police complaint against your wife for mental/physical abuse on your son. You may get child custody from court.

You may also file divorce petition with family court.

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

1.CWC does not have power to force your wife to let you see the child.

2.only the court can give such order.

3.Now the court will remain closed for next one month and hence no immediate relief you're likely to get.

4.Howeevr you may utilise this time to prepare for the custody suit so that you can get that filed .

5. once the case is filed the court can pass necessary order to visit the child.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

1) mere diary entries do not prove physical / mental cruelty

2) wife has to substantiate the allegations made by her in court

3) her petition would be dismissed if she is unable to prove her case

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Cogent evidence is factual evidence that help to establish the truth of something.

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

1. It is natural that no body sees fault in his/her own self and finds the world guilty and your wife is no exception.

2. Her diary with the said entries made in her own hand will be deadly for you and her in laws about whom she has made allegations in her said diary, if and only if, she commits suicide. In the said event, her said diary will be a a very useful evidence for the prosecution to prove the accused guilty.

3. In the event of her living, the diary has no value legally to prosecute the persons against whom she has made entries in her diary.

4. The threats given by herself and her near relatives in this regard are baseless.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

1) welfare of child is paramount consideration

2) since your child is only 5 years old court may not award you sole custody of child

3) court may award you joint custody

4) pending hearing and final disposal of application seek visitation rights for child

5) you can offer alternative accommodation to wife if it is not possible to stay with her

6) it should not affect your custody application

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. There are two aspects of your immediate problem of staying with her i.e. about her staying in separate floor of your parent's house and your staying with her where ever she stays.

2. The ideal situation for you should be to ensure that she stays in a place separate from your parent's house and you also stay in another accommodation (but actually with your parents without keeping records).

3. It is sure that your wife will not shift with you to another place vacating the floor occupied by her in your parent's house.

4. You should now take up a rented accommodation and try to shift to that place along with your wife and if she refuses to shift, then you should shift to that place.

5. There after your parents should file an eviction suit against you and your mother should also file a DV case against your wife.

6. Once she is evicted or you manage to get her shifted to a new place, you can come back to your parent's house (after keeping in record that you have taken another place for your staying due to the torture of your wife).

7. If she can prove that you have been staying in your parent's house, she can return there even with police help since as per law, wife has the right to stay at the place where her husband is staying.

8. Hence, the instant matter shall have to be dealt with very skillfully and craftily.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Sir,

Keeping them with separate accommodation is your personal. There are many other factors would affect child custody application.

Talk to a lawyer available on the forum to get it clarified for all your questions at once.

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

1) you can go your in laws residence and request your wife to return to her matrimonial home with the child

2) if you forcibly bring the child to your residence wife may approach local police station and file police complaint against you

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

You can apply for divorce on the grounds of cruelty.

At the same time you can even file a child custody case on the same cruelty grounds besides other tortures and the welfare of the child and you can even obtain interim relief by seeking visitation rights till the disposal of the main petition.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

To clarify : Live in parents house, in a different floor where my parents live.

In the same house my parents live in a different floor.

Even if you life under the same roof with your wife, you can apply for divorce on the grounds of cruelty and non-cohabitation

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

If I move to a new place, arrange another accommodation for my wife, send her monthly expenses, and my parents tell her to move there would that be illegal? Is that feasible? How much time that may take?

You cannot ask her to move to some other place from this house because she may claim that this is her matrimonial home hence she may refuse to vacate or shift to some other place.

If the house is on your parents name, they can file an eviction suit agaisnt her and also against you so that the case will be effective and strong enough.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Since my son's vacations are going to start from tomorrow, it is highly likely that she will take my son and will go to her parental home. And then, will not repsond to any of my calls, SMS, forget allowing to meet him. If such a thing happens, may I lodge a missing person report for my son in the police station? Would police take action and order them to turn me son up in front of me?

Any such complaint with the police will not be maintainable.

The police will not entertain any such complaint because the child is with its biological mother and is safe hence the police will not interfere in this matrimonial dispute.

You can approach court alone for any relief in this regard.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

While threatening me and my parents that by wife and her near relatives that they will sent us to jail, they often say, she has diary entries and on that basis they will do so. I managed to see some of those entries and it seems that her whole point is to show how much torture she has been meted out with and how much mental agony she is facing by her in-laws and husband. She never say a word about what she has been doing all these years and fabricate all those stuff in her diaries. My question is how cogent whose diary entries will be in the eyes of court?

No doubt the diary cannot be considered as a primary evidence in the case that she may file, but it may used to corroborate her allegations because the diary contains the events date wise and chronologically.

You have to prepare yourself to defend your interests properly with evidences in your possession and merits in your side.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

I understand that I have to file Child Custody and Divorce for relief. If I arrange a separate accommodation for my wife and since I don't want to stay with her, I move to another separate accommodation, do you experts think that is legal and good move? May it effect my child custody application?

The child custody application has nothing to with your decision to shift your residence.

You can shift your residence due to the reasons that you may think it would be better to handle her cases and herself as well.

It is purely your decision which cannot be questioned.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

I am not applying force since that may invite DV or other charges. Now they have gone to her parent's place. Now if I apply force and bring my son to my place, would be that be illegal?

For bringing back your child, you can adopt any mode other than harming them physically.

You can forcibly bring the child back to your home, the police cannot interfere in this becasue the same principle i.e., you are the biological father to the son hence you have equal rights in him shall apply.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. Taking custody of the son who is in custody of his mother by applying force and by due process of law is highly illegal and it may start a new criminal case again st you.

2. Your wife's lawyer will surely place this matter of your forcibly taking away your son from her custody will certainly not go down well with the Judge.

3. Moreover, mother is considered as the natural guardian of her child till his 5 years of age.

4. You should file the child custody case after he attains the age of 6 years on the ground that his custody with you shall be for his welfare.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

Yes you are not advised to apply any force to get the custody of your child, she can even file an FIR for using such force.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

wife refusal to have sex amounts to mental cruelty and is ground for divorce

2)wife abusing husband , in laws amounts to mental cruelty and is ground for divorce

3)wife refusing to stay with husband in her matrimonial home amounts to mental cruelty

4) wife refusal to permit son to meet his grand parents , poisoning his mind amounts to mental cruelty

5) file for divorce at the earliest

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

1. Non appearing in social functions with husband may not be considered as a valid ground for seeking the decree of divorce. This may not be considered as an act of cruelty by your wife.

2. Refusing to have physical relationship with husband is an act of cruelty based on which divorce can be sought.

3. Leaving husband for a long period with out leaving any information can be considered as an act of cruelty.

4.Audio/Video record all such abusive incidences.These are god grounds to seek divorce.

5. File petition praying for a direction upon your wife t allow you to visit our child at particular hours of scheduled days in a week.

6. Not cooking for husband is an act of cruelty for which decree of divorce ca be sought.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

All these things mentioned by you broadly comes under the head of cruelty, so yes you may file divorce on the sole ground of cruelty.

If she files complaints against you after you file the divorce, you may go for quashing of such complaints on the ground that the same is a result/ retaliation to the case filed by you.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

No that would not, but take care that there is no physical harm either to wife or child.

She also can not stop you forcefully.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

1) husband refusing to permit wife to take child to her maternal place amounts to cruelty

2)if wife stops you from taking the child to meet your parents amounts to mental cruelty

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Once I file divorce, it is highly likely that she will file all the suits meant to protect women

and will also try to paint a picture that me and my parents tortured her. So I have to be prepared for that too.

Would be thankful for any other suggestions. She ceased to cohabit, so I don't think I would go for any reconciliation.

You can file a divorce case against her on the grounds of mental cruelty

All these things, besides other factors may be mentioned in the pleadings made in the petition as grounds for divorce.

The people who you cite as witnesses, would not turn up to court to depose evidence stating that this is a headache and problemsome hence they may abstain from appearing before court to depose evidence in your support, you may have to depend on your own strategies if this step or effort fails to fetch fruit.

Discuss with your advocate at length and decide further course of action.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

Since last one year my five and half year old son is allowed to meet my parents by my wife, though my parents and my son live in the same premises. Where as, my wife often takes my child and goes to her parental home with even informing me. My question is, if I stop my wife from taking my child to her parental home, may that attract domestic violence or would that be tantamount to cruelty?

If I take my child to meet my parents and she stops that forcefully, would that be cruelty to me or my child perpetrated by her?

Instead of stopping your wife from taking your child to her parents' house, you may argue that if he is taken to visit them then he should be allowed to visit your parents too or else to not to take him there also.

This cannot be construed as domestic violence because it is a matter of child's interest.

Try to handle the situation as humbly as possible without getting violent about it.

Your furious behavior may become a reason to spoil the entire show.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. No body can apply force on the other party for any thing. Force is expected top be applied by the law enforceable authorities.

2. If she takes her son to her parent's place, you can ask her not to take your son along with but can not apply force. If you apply force on the said matter, it will be construed as DV.

3. Similarly, since all of you stay in the same house and court has not specified in whose custody your son will be reared, you have the right to take your son for meeting with your old and desiring parents. If she stops you in doing so, it will certainly be construed as an act of cruelty.

4. Audio/Video record all her such acts which will be helpful at a later date for submitting before the Court as evidence of her cruel acts.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

There is no straight judgements on this point. Only in case the issue is deliberated in court, it can ascertained with precision whether or not this will amount to cruelty.

Having said that, you may take you chance and try proving the same as an instance of mental cruelty.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

The house belongs to your parents

2) they cannot install any collapsible gate without your parents consent

3) your parents should file suit and seek court orders to direct wife to vabcate portion of house in her possession

4) restrain her from installing collapsible gate

5) don’t take Law into your hands

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

they are not at the liberty to install collapsible gate in your house, ask your father to file a suit for injunction getting an order restraining them from making any collapsible gate in your premises.

Even if they succeeds to do so by applying force, if I demolish that latter, would that be illegal?

Since it is your house you may do the same, but it is not advised.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

A. The title of the said house stands in the name of your parents where no construction can be made by anybody other than the title holders.

B. In one of my earlier posts I had suggested the following:

" The ideal situation for you should be to ensure that she stays in a place separate from your parent's house and you also stay in another accommodation (but actually with your parents without keeping records).

3. It is sure that your wife will not shift with you to another place vacating the floor occupied by her in your parent's house.

4. You should now take up a rented accommodation and try to shift to that place along with your wife and if she refuses to shift, then you should shift to that place.

5. There after your parents should file an eviction suit against you and your mother should also file a DV case against your wife.

The ideal situation for you should be to ensure that she stays in a place separate from your parent's house and you also stay in another accommodation (but actually with your parents without keeping records).

3. It is sure that your wife will not shift with you to another place vacating the floor occupied by her in your parent's house.

4. You should now take up a rented accommodation and try to shift to that place along with your wife and if she refuses to shift, then you should shift to that place.

5. There after your parents should file an eviction suit against you and your mother should also file a DV case against your wife."

C. So, as advised earlier, you should have shifted (at least on papers) to another place and your father should have filed an eviction suit against her.

D. After filing the eviction suit, your parents shall have to file a police complaint against your wife and her parents for illegally constructing the collapsible gate and file an application under Order 39 Rule 1 & 2 praying for an order restraining her in constructing the collapsible gate before the suit is disposed of.

E. Meantime you can resist their application of force for constructing the collapsible gate at the house of your parents.

Krishna Kishore Ganguly
Advocate, Kolkata
27191 Answers
726 Consultations

5.0 on 5.0

It is your right to visit your child and see him in-person. Nobody can take away this right from you. You are advised to file a petition under the Guardians and Wards Act and seek custody of your child. As an interim measure, seek visitation rights.

If they are installing this collapsible gate in their house, I'm afraid, you cannot do anything against this move. As advised approach the Court seeking custody and visitation rights.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

1. They cannot be allowed to make any structural changes in your house, you can object and stop them by force, let them approach police for doing this illegal thing, it will backfire.

2. You are no one to punish them, you may approach police or court for initiating proper legal action if you cannot stop them physically.

3. It will not be illegal because it is your house.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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