• Baby boy child custody

Hi sir,

I got exparte divorce after one year of marriage , and she filed 498a case on entire family while divorce case was running. Now we have applied bail on Karnataka high Court ,we never asked any of the dowry

Now my question is we have one year old boy, that kid is with my ex wife , and now I filed child custody in local court in taminadu . She is un healthy women and she has lot of disease like fix ,vising,migrine . She can't take care my son. As well as she is internet addiction disorder too. She always in fb and Twitter . And she never taking care about my son . She gave my son to her mom , and she simply sitting me chatting on fb , how to convey this issue to court? Because i am so scared about my son future and I have not see my kid till now and I don't have a any contact to her .she changed her mobile no and blocked me everywhere 

About 498a I have one doubt , I used to speak filthy language when she was on online . Is this comes under 498a mental creulty .. I am also human sir . If she doesn't not take about my child, then I got an angry I send filthy language message to her via chat. How can I solve this?

I need my child sir, how can I fight for that ?
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

Firstly, I advice you to go little easy now for a while and try to understand her that you should allow to meet him.

Secondly, go like this for several days.

Thirdly and lastly, just keep the records of her daily life find out the loopholes, and then approach the court for your children custody otherwise it is very difficult because normally little baby can only be given to the mother except exceptional situation like yours.

Good Luck

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

yes speaking bad words also comes under mental cruelty.

You can file a original petition under guardian ship act you can definitely get ur child back stating the reasons u told. the court cannot object your petition ...even if they object the court will pass an conditional order stating that you will allow you to meet your son weekly once or twice or thrice .

Shiva Bharathy
Advocate, Chennai
81 Answers
1 Consultation

4.0 on 5.0

based on the recent judgment of supreme court no one should be arrested under 498a without proper investigation .

yes it mounts to cruelty.

based on your child born place or your marriage place you should file a petition under guardian ship act.

Shiva Bharathy
Advocate, Chennai
81 Answers
1 Consultation

4.0 on 5.0

1) your son is only one yer old

2) court would not award you sole custody of one year old son . you would be awarded visitation rights

3) welfare of child is paramount consideration

4) merely because wife is suffering from migraine and is addicted to internet is no ground to refuse her child custody

5) filthy messages used by you on your wife come under ambit of mental cruelty

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

there is no automatic arrest in 498A case

2) police would issue you notice to record your statement

3)you can apply for and obtain AB from sessions court

4)in your statement to police mention that wife is suffering from internet disorder and differences arose between you because she neglected the child

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Respected sir...

You just have to prove these things which you said here that she is not capable of maintaice child and my child is not safe with her ....Nothing more sir the person sitting in court is also a human beings he will consider it but in my opinion it wil be better if you file child coustdy when your son is 5 yr old ...That will help you alot ..And no need to worry about rough language as that all was said as when she denies to give my child as well as she said I will not take care of him...Noodle officer will prove this that she you use to be on internet for long time ...

Thanku

Dinesh Sharawat
Advocate, Delhi
1253 Answers
12 Consultations

4.9 on 5.0

1.Since case is pending you better ppaer in the 498A case and get bail.

2.If warrant is issued the police can come to your place any time arrest the FIR named persons.

3.The FB issue is not big deal as online abuses is no offence u/s498A IPC.

4.If you prove her diseases and resultant physical incapacity there is good merit in getting custody ofthe child.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
366 Consultations

5.0 on 5.0

In the case of child custody family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.

1. Permanent Custody

2. Interim Custody

3. Visitation Right

Fathers in India has to face a terrible truth that a minor child custody will be undoubtedly awarded to mothers, unless proven that she has neglected her child. Most fathers don’t want to confront the issue, not realizing that they put themselves in more vulnerable state and at loss during divorce proceedings, especially while fighting for child custody and support

Permanent Custody is awarded by the Court after determination of all aspect of the case. Prime Criterion before awarding final custody in favour of one spouse as against the other is WELAFRE OF THE CHILD.When considering the age of the child most probably the custody given to mother.custody of a child below seven years of age belongs to the mother.

Compelling reasons for a mother to lose custody: neglect; abandonment; unemployment and immorality; habitual drunkenness; drug addiction; maltreatment of the child; insanity; affliction with a communicable illness.Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. So file a custody application in bangalore family court.

As per new supreme court rulings there is no automatic arrest in 498A case .

Ajay N S
Advocate, Ernakulam
3948 Answers
84 Consultations

5.0 on 5.0

1. You have to prove the negligence on her part in securing and promoting the welfare of child. It is never an easy task to uproot the custody of child from the mother. The courts do not ordinarily uproot the child from the mother unless there is evidence forthcoming of the neglect on the part of mother. The allegations that you make will have to be proved.

2. Speaking filth language alone does not constitute an offence under 498A.

Ashish Davessar
Advocate, Jaipur
30752 Answers
923 Consultations

5.0 on 5.0

1. If you have not yet been granted interim bail then police is at liberty to arrest you when you appear.

2.If she is addicted to internet then you have to prove this. Merely by pleading this you cannot prove it. There has to be evidence of that.

Ashish Davessar
Advocate, Jaipur
30752 Answers
923 Consultations

5.0 on 5.0

1. Without the recommendation from medical counseling officer the 498a case can not be filed ( per. recent supreme court ruling ) .

2. Using filthy language can not lead to 498a or mental cruelty but it can lead cyber crime case against you ( u/s 66 of IT act ) .

3. To take anticipatory bail you need to approach local magistrate court and can not approach HC directly. If you have already approached HC then you would be directed to lower court to obtain bail or your bail application will be dismissed.

4. Without bail order do not approach IO. You may be arrested.

... etc.,

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

Hi, first get anticipatory bail in order to protect yourself from arrest and join the trial .. You can file the custody of child , mentioning her health issues .. It will be difficult to prove her addiction over Internet as every person nowadays are using Internet ..however you can claim custody of the health of your child is getting affected due to less care attitude of mother

Hemant Chaudhary
Advocate, Gurgaon
4617 Answers
55 Consultations

4.9 on 5.0

I need my child sir, how can I fight for that ?

Your child happens to be of just 1 years and in all probabilities you will just get the visitation tights as of now. While deciding the custody the welfare of the child is of paramount importance.

Reason that the wife is addicted to interned is no ground for denial of the custody.

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

Thank you for your reply sir , the problem is I am in taminadu . She is in Bangalore.almost 600km away from my home town . And 498a fir has been filed and they send two summon to us , we have not appear yet and our bail order also pending.. if I go there, will they arrest me ? And filthy language comes under 498a mental creulty ? How can I tell to the court about internet addiction disorder?

There is no automatic arrest in the cases of 498 till you comply with the provisions of 41A of Cr.p.C. as per the judgment of the Arnesh Kumar passed by the Hon'ble SC. Obtain AB from the sessions court, and as and when you appear before the police tell the factual situation to the police and mention that your wife is suffering from mental disorder.

Regards

Anilesh Tewari
Advocate, New Delhi
17870 Answers
344 Consultations

5.0 on 5.0

1. Filthy language comes under 498a mental cruelty: If all this has lead to her mental cruelty, this can be covered under 498a. Technically, hurling abuses is punishable under 503.

2. There will be no automatic arrest. Appear and cooperate with the Police in the investigation.

3. You can inform the Court of this during trial, in case there's any.

Vibhanshu Srivastava
Advocate, New Delhi
9350 Answers
219 Consultations

5.0 on 5.0

As far as the 498a case is concerned you first obtain AB and then challenge the same in the court properly on merits in your side.

As far as the child custody case is concerned you can plead all those observations you have made on her and try to convince court during final argument about her negligent attitude which may hamper the child and its growth and emphasise on the child's paramount concern.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

The filthy language and other issues have to be proved by her during trial proceedings, hence dont be worried about them at this stage itself.

The recorded evidences are not admissible in court in the trial hence dont be worried on that aspect.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

Speaking filthy language on phone not good for you

If you satisfy with your version that she is not physically and mentally not in sound health in court then you will be freed

If crime is pending one can be arrested

P V Reddy
Advocate, Hyderabad
422 Answers
3 Consultations

4.2 on 5.0

First of all 498a is infractuas if you have obtained ex parte diavorce. Do one thing file quashing OF FIR in Highcourt on merits. It will work for you. Now come to custody , file a custudy suit in the court of illaqa magistrate stating all facts. Court will take decision accordingly.

Rajesh Kumar
Advocate, Ludhiana
119 Answers
1 Consultation

4.3 on 5.0

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