• Divorce

sir i married in the year 2010.  i have a son (born in 2011) who is now 31/2 years old.   i got pregnant for the second time in the year 2012.  my husband threatened me that he will commit suicide and made me abort my child.  i complained the same to my elders (husband side) and they supported my husband.  at the time of my marriage my husband was working in bangalore and myself in hyderabad.  he came to hyd after three months of my marriage but never rented a house but made me stay in their uncle's house.  there was no privacy and he also never tried to spend time with me.  when i complained the same to my husband he stopped speaking with me for two months.  my husband's parents know about this but they forced me to obey my husband.  i strongly feel that the time to develop love between me and my husband has passed.  many misunderstanding have paved way between us.  there is no matter of reconciliation.  there is no proper understanding or love between my husband and me.    therefore, after abortion i left my husband's house.  i am a govt. employee.  4 months after i left his house, he filed a case in court for "restitution of conjugal rights".  in this case he FALSELY said that after my son was born i left his house.  when i produced the doctor certificates of my abortion where my sign and his are there, he changed his statement.  
now i came to know that he wishes to withdraw his case and file a case for divorce.  i want to give divorce.  after i left his house he never contacted me or my son.  i dont want any kind of money from him.  he can give maintenance for my son IF he wants.  but i know that both mother and father have equal rights on their child.  i dont have any objection if he comes to see my child at my home.  but i dont want to send my son with him even for a minute.  i fear that he will try to take my son away pretending to see him.  
my doubt is for example if the court orders for visitation rights for my husband say 2 days a month, should i send my son with my husband.  i dont want to send my son with him.  because he tried to restrict me and my son in his house by closing all the doors of the house.  one foolish thing i have done is i did not say the same while fighting against the restitution of conjugal rights case.  please help me.
Asked 2 years ago in Family Law from hyderabad, Andhra Pradesh
Religion: Hindu
1) you can file for divorce by mutual consent . 

2) consent terms can be drawn wherein custody of child would be awarded to you and your husband would have visitation rights . 

3) please note that no court would deny father visitation rights for the child 

4) however court can lay down reasonable restrictions wherein husband can visit the child at your residence or any public place 

5) if your husband does not agree for mutual consent divorce let him file for contested divorce . 

6) since you are working wife you wont get maintenance but court will award maintenance for the child
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
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Hi, if the court order for the visitation right you have to obey the order and no court will not deny the right of the father but do one you can contest the application and secondly if the child does not willing to go with his father than even though the order passed by the court your husband will not to do anything.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Since you and your husband are on the same page in so far as filing of divorce is concerned you may apply to court for mutual consent divorce.

2. All issues emanating out of marriage such as maintenance, child custody and/or visitation would have to be incorporated in the MOU. 

3. If your husband applies to court for custody the court may, if it holds him not entitled to custody, award him visitation rights. Visitation rights granted by the court may include the right to take the child away with him from morning to evening on weekends without the presence of mother. 

4. If there is no agreement between you and your husband on the question of custody and visitation then your husband may file a case for child custody and contested divorce. You can contest and oppose his case for child custody.

5. The court will award maintenance to your child.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Hello,
1) You have  stated that you have learned that your husband is in the process of withdrawing RCR and filing for divorce and you are not averse to the idea either as you think the marriage has hit the rock bottom. In this case it would be advisable to file a divorce by mutual consent.

2) In a mutual consent divorce you shall draw up  Consent terms including decisions about custody of child , maintenance etc.

3) In case your husband is unwilling for a MCD you can file for divorce on grounds of cruelty and if the husband files for custody you need to contest it . As the child is below 5 years you will be given custody. The visitation right if ordered by the court has to be complied with.What you can do is to ensure suitable restrictions are placed on the visitation itself.
4) Your child is entitled to maintenance and the court will order appropriate maintenance.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. You are jumping the guns in apprehension while stating l "but i dont want to send my son with him even for a minute.  i fear that he will try to take my son away pretending to see him",

2. You can put forth your argument before the Court when he files an application for child visitaion but visitation right of the father will never be denied by the Court based on your apprehension,

3. However, it will be prudent on your part to discuss with your husband and go for MCD and execute a MOU based on which the MCD will be filed,

4. Both of you can mutually agree about his visitation and amicably settle for the MCD.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
The birth of a child is one of the biggest miracles of god and then comes a separation called 'divorce' and the custody of the child becomes the biggest problem. With the many other implications that a divorce has on the individual, family and society at large, children of divorced couples are the ones who bear the brunt of the entire happening. It is a common practice among couples to use kids as pawns in the game of emotional chess. It amounts to absolutely irresponsible parenting to scar children emotionally post separation. 

Father and mother have equal right and responsibility on child. The basic principles of the courts are to ensure that the child gets to spend equal or substantial and significant time to be showered with love and affection from both the parents irrespective of parent’s conflict.

Solution 
Your husband is willing for a Mutual consent divorce then files it jointly. Other wiser you file a separate petition  for divorce
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0

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