• Custody of 4.5 year old

My husband and I have been married for 8 years and we have a 4.5:year old son. My husband started ignoring me completely since Feb 2017 and used to spend most weekend out of home on pretext of work. Later, I figured out that he was meeting his school girl mate as they were planning to get into a business. This is while he is employed in a Pvt. Company. He and his parents started emotionally and mentally  torturing me when I confronted him about his affair with his friend. It took a toll on my mental and physical health and I moved to my parents house for a few weeks. On my return they made my life more miserable by isolating me and our son completely. My husband refused to spend anytime with our son and me and most weekends was away from city to be in the company of his girlfriend. He forced me to leave the house and abandoned my son and me. As it was a rented accommodation, he vacated the house after literally asking me to leave the house  and now I don't know about his and his parents whereabouts. He and his parents blocked all communication from us including blocking my and friends phone  numbers.  During this period he kept sending me nasty emails full of false allegations. His main reason to leave us is because if his affair with his girl friend and now he has sent me a legal notice for child custody. I am currently at my parents house since last 2 months  and looking for a rental house for myself.
Asked 2 years ago in Family Law from New Delhi, Delhi
Religion: Hindu

you are requested to file a domestic violence case, a 498a case and a maintenance case against your husband and in laws immediately to get relief, and also file a case for child custody and seek for a house from husband, please visit a good lawyer who will guide you properly and do not file divorce, your husband will come with folded hands to you.

Aveek Bose
Advocate, Kolkata
994 Answers
5 Consultations

4.7 on 5.0

1) you would be awarded custody of your child

2) welfare of child is paramount consideration

3) file petition for RCR under section 9 of HMA

4) seek custody of your son

5) also seek maintenance for yourself and son

Ajay Sethi
Advocate, Mumbai
69049 Answers
4153 Consultations

5.0 on 5.0

1. Don't worry, he would never get custody of the child if fight properly.

2. He has committed crime. So lodge complaint under section 598a, 406,596 ipc. Mention his adultery as well in the complaint.

3. If you are no working woman then he is liable for maintenance@ 1/3- 1/4 of his income. So file case under PWDV act. Don't show him any leniency unless he repents and vouch for reformation.

Devajyoti Barman
Advocate, Kolkata
18124 Answers
260 Consultations

5.0 on 5.0

The custody of child up to 5 years ago is vested with mother and father gets custody is very strong case.

You need to file a FIR in the police for 498A and DV Act and go for maintenance under section 125 CrPC for your self and son in the family court along with RCR under sec 9 of the Hindu Marriage Act.

Vimlesh Prasad Mishra
Advocate, Lucknow
5683 Answers
19 Consultations

4.9 on 5.0

Try to settle the matters by organising a meeting with elders of the family. If it doesn't work then file a domestic violence case and maintenance case against your husband. Send a legal notice through an Advocate prior to that so that if there is any hope of settlement then that can take place. You are liable to get maintenance for yourself as well as for your child. Also you have to reply to the legal notice.

Hope I have answered your query. Consult for legal help.

Anupam Kirti
Advocate, New Delhi
87 Answers
1 Consultation

4.9 on 5.0

1) you should contest the application filed by your husband for child custody

2) welfare of child is paramount consideration

3) court would not grant your husband custody of child

4) he would be granted visitation rights

Ajay Sethi
Advocate, Mumbai
69049 Answers
4153 Consultations

5.0 on 5.0

Hi

You can try filing section 9 RCR petition for saving your marriage.

Thank You

Rahul Jatain
Advocate, Rohtak
951 Answers
3 Consultations

4.9 on 5.0

i respect your feelings and emotions and your stand point, your husband has filed mental crulety and unfit case against you, emotions wont protect you only way to counter it is by doing such cases that can save you and your marriage, file restitution of conjugal rights and maintenance case for sake of your child.

Aveek Bose
Advocate, Kolkata
994 Answers
5 Consultations

4.7 on 5.0

Firstly, I myself would also advice you to not to think to get separated from him.

Secondly. But you also need to understand that just by waiting nothing would get happened.

Thirdly, you should file a case for maintenance under section 125 of crpc specifying that you need it for the sake of your child.

Lastly, eventually things will be good but, for now just go by it.

Good Luck...|

Can consult for further assistance.

Sanjay Baniwal
Advocate, South Delhi
4931 Answers
11 Consultations

5.0 on 5.0

Dear Mam,

You can also approach the court against him by levying charges as demand for dowry and domestic violence.

For this you have to firstly file a complaint in the police station and then move to court.

There are chances of your settlement in counselling/mediation.

Anand Shukla
Advocate, Delhi
487 Answers
12 Consultations

4.9 on 5.0

The allegations are week and contestable and are general in nature cannot be proved until and unless he has your track record of taking any medicine for the cure of mental sickness or any treatment for long term mental illness. if you are capable of meeting your expenses and give a file another case of custody of your son and maintenance. just to create pressure on him, stay away from him for quite some time to show that you want to be separated from him even you can file a divorce petition after 6 month of your separation but if you wish to save your marriage during the conciliation you may agree to live together and come back home.

As your in laws are quite old they can be tolerated for quite some more time and this is not a big cost to pay to save the marriage

Vimlesh Prasad Mishra
Advocate, Lucknow
5683 Answers
19 Consultations

4.9 on 5.0

1. Has he filed a petition for child custody? If the answer is yes then you have to contest the case on merits. Mere accusation that you are unfit to be mother will not convince the court to deny the custody to you. He has to prove your unfitness.

2. Since you want to save your marriage you can file a case under DV Act to seek the right to residence in your shared household and also protection order to put an end to further acts of domestic violence.

3. During the proceedings the court can refer the matter to mediation to iron out your differences.

Ashish Davessar
Advocate, Jaipur
26713 Answers
797 Consultations

5.0 on 5.0

1. What is your query please? What do you want to do now?

2. Since mother is the natural guardian of her child up to his/her 5 years of age, he won't be able to get custody of your child if he files a child custody case now.

3. You can now file a DV case against him and his parents claiming maintenance for you and your child.

Krishna Kishore Ganguly
Advocate, Kolkata
22781 Answers
613 Consultations

5.0 on 5.0

I know youblive your husband and sont want to divorce, but he wants it you really cant help it. However as the child is small you should get the cuatody, you would have to fight for it. You are a working woman, face it and be strong

Varnika Singh
Advocate, Ghaziabad
261 Answers
2 Consultations

4.9 on 5.0

1. If you want to lead a happy family life then you shall have to get your husband agreed to that and the Court of law can not force anybody to lead a happy family life.

2. The Court can punish some one if he causes damage or does a crime to/on some other person and also can decree a divorce or award custody of child but can not force a husband or a wife to stay with his/her wife/husband.

3. If he refuses to stay with his wife then it will be treated as cruelty for which divorce decree can be passed and/or he can be directed to pay maintenance or compensation.

4. A man of 77 years is too old to be even criticised, at least the Court will threat that way if this allegation is placed before it.

5.Though he has not yet filed divorce suit but the matter is rolling towards it unless is arrested at this stage.

6. May be that it will be prudent on your part to settle the dispute with him amicably in everybody's interest when both of you should consider that divorce is the 2nd most stressful event in one's life and one never knows whether his/her next person will be any better.

Krishna Kishore Ganguly
Advocate, Kolkata
22781 Answers
613 Consultations

5.0 on 5.0

Under the circumstances mentioned above i don't see much prospect in reviving marriage unless your husband comes back to you. So to do so you have no option but to use usual feminine measures to win him back.

Devajyoti Barman
Advocate, Kolkata
18124 Answers
260 Consultations

5.0 on 5.0

If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.

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.

Over the years, there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. 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.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access .

The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.

This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child's living and educational costs be met?

Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.

Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child's convenience, could include the non-custodial parent's right to school events, etc.

One ought to remember that as a parent every 'right' you exercise ought to also have a corresponding 'duty' towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child's educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. Investments which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.

A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor's property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be 'the best interest of the child'.

Kishan Dutt Kalaskar
Advocate, Bangalore
4690 Answers
134 Consultations

5.0 on 5.0

Under this circumstances you may file a petition under section 9 of HMA seeking restitution of conjugal rights and maintenance under section 24 and 26 for your child.

Alternately you can file a domestic violence case also against him seeking protection, residence and maintenance from him.

His child custody case can be challenged properly on merits in your side.

T Kalaiselvan
Advocate, Vellore
58895 Answers
746 Consultations

5.0 on 5.0

A domestic violence case against him shall be a relief besides restitution of conjugal rights case.

You cannot remain a silent spectator to all his cruel acts hence to make him realise the responsibilities and remind him about his duties as a husband, you have no option than to file a domestic violence case agaisnt him

T Kalaiselvan
Advocate, Vellore
58895 Answers
746 Consultations

5.0 on 5.0

You can file the petition of restitution of conjugal rights against him in court of law with the help of any local good advocate. By which court can order for the continuation of marriage if court convinced.

Laksheyender Kumar
Advocate, Delhi
734 Answers
2 Consultations

4.8 on 5.0

The best solution in this situation could be filing a criminal complaint against the husband and the in-laws so that they come down and accept you. However it is always advisable to have a detailed discussion of your case before providing legal opinion. Thanks & Regards.

Megha Kain
Advocate, New Delhi
9 Answers

4.0 on 5.0

Ms. Query Raiser,

Please file a writ for habeous corpus to get connected to your son and as you have mentioned that you still want to try and get back to the relation with your husband then you have to take certain steps which would make him understand the situation and would resolve your issues to much extent.

For more details please contact @

Arun V S
Advocate, Jaipur
55 Answers

4.0 on 5.0

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