• Custody and divorce

My brother got married in April,2015.Since I live abroad working fulltime with an infant, soon after his marriage my mother joined me to help me to look after the baby.
While my mother is with me my dad and the newly wed couple stayed in India at our place. My father and the bride’s father were friends and without any questions and enquiries on either sides and with their mutual consent they got married. There were no dowry transactions in the marriage as my father is against that.They were okay for about a month and immediately after which the girl conceived and my brother shared the news with all of us including her parents which annoyed her as she doesn’t want to start the family that soon and was adamant that she will abort the baby but my brother and her parents and we all convinced her to carry on with the pregnancy as we all are there to take care of the new born. After that she said yes to keep the baby and from on her attitude towards us and my brother changed and started torturing my brother with questions and fighting with him for small small things saying that he doesn’t care for her words.This girl always wants to go out till late night and eat outside and also pester my brother to take leave from work very often which my brother can not afford as he works for a private sector. She shared each and everything even the bed room matters with her mother and her mother comes and asks my mom why he is like this and all which is weird.
After 6 months she left to her parents place where she delivered a baby girl and as her mother don’t know how to take care of the new born my mom went back to India and stayed at their place for couple of weeks and came back home ...after 3 months when my parents went to bring her and the baby she refused to come saying that she underwent c section and cannot manage the baby again at 6 months my parents and ny brother asked her to come then she refused saying she will not as she wants my brother to come and stay with her at her parents place for which my brother refused.from then on she is living with her parents and even refusing to show the baby to us.

In this case ,what are my brother’s options and rights towards his daughter as he is in depression with his daughter being away from him. We tried to amicably solve the issue but then no use as she said she need some time to think over if she want to come back or not and never responded.
My father is now 65 and mum is over 55 and they both have health issues and brother is not willing to leave them and go separately. Through our friends we got to know that she wanted money now and not willing to join our family.

Please help!
Asked 4 years ago in Family Law
Religion: Hindu

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13 Answers

1) If you don't want to take issue with court for Divorce. Than take a middle man or counselor help to solve the issue as they are experts in tgis field.

2) First of fall your brother's wife counselling must be done. After that we will come to know what is running in her mind.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit. In the middle of the case use mediation and counseling. Handle with care, so don't think negatively and do not interfere much in their life.

Ajay N S
Advocate, Ernakulam
3990 Answers
93 Consultations

5.0 on 5.0

1) since wife refuses to stay with husband divorce by mutual consent is best option

2) consent terms should contain clause regarding joint custody of daughter

3) it should be provided that husband would have custody of child over the weekends and during holidays

4) agree to pay X amount as alimony

5) dont file RCR as even f you get decree you cannot force wife to stay with you

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

1. This is a compatible issue which is to be sorted out with personal touch only.

2. Ask your brother tot talk to his wife in private and to check her sincerity for marriage stay for sometime separately.

3. if still marriage does not work then he will have to decide that this marriage is over.

4. if he doesn't want to stay separate even for a short period of time then he must be firm and send a message to the girl that either she comes and stay with him jointly with his parents or stay with her parents.

5. Firmness of decisison often works. aSK YOUR BROTHER TO BEG BEFORE HIS WIFE TO COME BACK.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0


I believe that you behind to Hindu family and understood that your brother got married your father's close friend's daughter. You also stayed that the girl got conceived immediately after marriage and she doesn't want to start her life immediately as she want to or like to have good time with your brother before kid. But, fortunately she got conceived and after delivyshe refuse to live with your brother even after enough tries from your family.

Here the options are available below.

1. Your brother having legal rights to file a case under section 9 of Hindu marriage act for calling wife back to live with him. This is called Restitution of conjugal rights.

2.The second part your brother is the legal father of the newlyyborn baby right. So, he can file an Interlocutary Application (IA) on child visitation rights in the above said restitution petition ay the neat by family court or sub court.

Sivasubramanian B
Advocate, Chennai
47 Answers
3 Consultations

4.8 on 5.0

1. If your brother wants the custody of his daughter then he has to file a petition for child custody. The courts ordinarily do not uproot an infant from his mother save in exceptional circumstances, but your brother will get visitation rights.

2. Your brother may also file a petition for restitution of conjugal rights (RCR) against his wife to seek a decree from the court to her to come and resume cohabitation with him.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Dear Querist

your brother may file a petition Under section 9 of Hindu Marriage Act-1955 for restitution of conjugal rights and also file an application under section 26 of the Hindu Marriage Act for the child custody, the family court have power to pass an order against her to appear before the court along with the child and your brother may see the child and show his love and affection towards the child and her mother.

if your brother is not ready to live with his wife then he may file a divorce case against her based on cruelty under section 13(1)(ia) of Hindu Marriage Act before the Family Court.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

In case she is not coming back just file a petionafter under section 9 of Hindu Marriage Act for RCR.

If she do not turn after the direction go for divorce petition based on cruelty by her.

Please be aware that the issue of maintenance under section 125 CrPC for self and child will be arise and you need to pay the amount decided by the court and alimony on the award of divorce.

Please also consider the the way out of this problem and if this could be avoided by living separately. The family should find an amicable solution to this which may save the marriage.

The custody of children below 5 years is vested with mother under section 6.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Since your brother has been abandoned and deserted by her wife, he has the option to file a petition for restitution of conjugal rights against her wife.

To see the child, he needs to file a petition under Guardians and Wards Act and seek visitation rights as an interim measure so that he may personally visit the child and see him/her.

Ask him to contact a local lawyer to file above suggested cases.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

This is nothing but a development of trivial issues.

Since she is not realizing the gravity of her acts, she is ignorant of the effects, well, your brother should not take any decision in haste.

For the present he may handle patience and remain silent to allow the time to pass which would certainly bring a solution either way after a little long silence.

Let him wait for six months from now on, by then they will do some mistakes by which their color and intentions would be revealed after it will become easy to take appropriate decision.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

As he is in abroad, chances are she may file a false 498a and other cases as that is the best option for them to get him back to india. But don't worry, law with respect to 498a has changed. As the marriage is solemnized in india, the indian laws shall apply to regulate such marriage. As she is in india, she may not hurry to file a petition for divorce or restitution fearing legal costs, instead , they will wait for him to initiate. If he is not in hurry, let him wait for some more time. Once he files restitution or divorce, immediately, they may file 498a as adivsed by their lawyer. Therefore, allow the matter to cool for some time, wait, if she can change her attitude. They will not wait indefinitely and will initiate within few months, then you can respond.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

You can file both divorce and custody cases in Court against your wife. Normally custody of small child is given to mother but father has visitation rights of the said baby. They can't deprive you for the same. Ask for interim reliefs in your petition for custody for visitation rights of father to see he child.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0


If the wife is asking the husband to stay away from his parents then the same amounts to cruelty and the divorce can be sought on this ground. Issue her a notice through an advocate to come back to her matrimonial house and discharge her duties as a wife.

Also the custody of the child is decided by the court after considering the welfare of the child, welfare of the child is of paramount importance while deciding the custody of the child.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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