Please sir next time make a video of her abusive behaviour and drunken state. Then file a case under guardian and wards act seeking custudy of children. About divorce you can see later if she mends her way it's good or you can just file divorce under section 13(1)a of Hindu marriage act. Better file an application seeking custody of children so that even if she files false case under DV act you can get bail easily. As per supreme court guidelines you can't be arrested under DV act or under 498a of ipc...

You can file for divorce under section 13 hindu marriage act. To custody of child is given on basis of laid down hindu law but still you can have the visitation rights.

Section 6 Natural Guardians of a Hindu Minor:-

The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interests in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother-provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boyar an illegitimate unmarried girl-the mother, and after her, the father;

(c) in case of a married girl-the husband:

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu; or

(b) if he has completely and finally renounced the world by becoming a hermit (Vanaprastha) or an ascetic (Yati or Sanyasi).

Explanation.- In this section, the expressions "father" and "mother" do not include a step-father and a step-mother.

The court has the right to appoint a guardian for a minor’s person or property or both under the Guardians and Wards Act, 1890. A ‘minor’ is considered to be a person who is generally under the age of 18; physically and intellectually imperfect and immature and hence needing someone’s protection. This law is applicable to all religions and is considered in conjunction with specific religious laws.

The court considers the following aspects while deciding guardianship:

1. The personal law to which the minor is subject;

2. The age, sex and religion of the minor;

3. The character and capacity of the proposed guardian and his nearness of kin to the minor;

4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property;

5. If the minor is old enough to form an intelligent preference, the court may consider that preference;

6. The court shall not appoint or declare any person to be a guardian against his will;

7. The courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings;

8. The child’s comfort, health, material, intellectual, moral and spiritual welfare.

Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.

Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

In the case of child custody, there are different kinds of custody that can be awarded by the Indian courts to parents:

1. Physical custody of child – The physical custody of the child means that the child shall live with the parent who is granted the physical custody. The other parent is usually given visitation rights over the weekend. The parent who has the physical custody is usually the primary guardian.

2. Legal custody of child – In legal custody, the parents have the right to make important decisions regarding educational and religious upbringing, financial support and medical care that affect the welfare of the child. This decision making is generally shared among parents and the expenses and maintenance are borne by both the parents.

3. Joint custody of child – Recently, a new concept of joint custody has been evolving which gives both parents equal physical and legal custody. Though there are no legal provisions on shared parenting, the judiciary has been taking steps to bring about joint custody in India. Through this, children of separated parents can get the benefit of having both parents as active members in their life thus doing away with the concept of primary guardianship.

There is chance your wife can file a domestic violence complaint/case in that situation you should be ready to fight it along all the evidence and witness that there is no such type of act done by you.

1) where does your marriage soleminzed in India or abroad ?

2) As per Hindu Marriage Act or Special Marriage Act ?

3) She is working or house wife ?

4) Where you want apply for divorce in India or Abroad?

5) you want to go with Mutual Divorce Process or judicial Divorce Process?

After knowing all above facts than we will be answer your questions.

Are you residing in India or in Vietnam?

Well, it wont make any difference for arrogant woman like this.

They will try to implicate you false cases for their benefits and they may go to any extent to avenge you as well.

The situation, if is beyond tolerance, you may decide to part with her forever.

You may file a divorce case on the grounds of cruelty and can cite her drinking habits and harassment after intoxicated and her inebriated conditions, her non-cooperation, insulting behavior, short tempered attitude due to which lot of problems being made to face, etc as grounds for divorce.

You may seek the permanent custody of your children owing to her lack of interests to take care the children and her undesirable activities which may hamper the future of children as strong reasons for seeking sole custody of the children and the welfare of children as paramount.

1) I will assume marriage is soleminzed in India as per Hindu Marriage Act. And if you go for divorce below are future assumptions may took place.

2) If your wife is working than you don't have to pay alimony, if she is not working means house wife than you have to pay alimony. It depends upon court under whose custody children will remain.

3) As stated by you your daughter is 3 years old , so she will remain in mother's custody as per Guardian Act. For son it will be in father's custody, but still cross questions will be asked by court for example how capable is father to take care of child etc etc, than court will decide to keep son in father's custody or in mother's custody.

4) If you go for Mutual Consent Divorce than it will be fast process, and by judicial process it will be lengthy process as compared to MCD.

5) You know that she drinks very much and she is drunker. So any thing goes wrong that if she files domestic violence complaint against you than you have to take self defence by telling police that we have family dispute always and she always drinks and fight with you and abuses.

6) My suggestion is here file complaint or give application in local police station that whenever wife drunken she fight with you, threatening you and abuses etc. So you will be safe if she filed also domestic violence complaint before that you have alert police men about your wife's nature.

1)you can file for divorce on grounds of mental cruelty

2) wife abusing husband amounts to mental cruelty

3)wife has right to stay in her matrimonial home

4) you cannot evict her from her matrimonial home

5)in the event wife files false DV report deny allegations made

6) bruden of proof is upon wife to prove her allegations

7) you can install CCTV cameras in the living room of your house

8) record her abuses it would help you in making out a case for mental cruelty

9) in divorce petition seek joint custody of your children

Immediately file a divorce case against against her before the family court based on cruelty.

You may file a complaint against her before police or directly in court, as you are not in India so it will be better to contact a lawyer in your area.

If you are Indian then you may file divorce case based in cruelty under section 13(1)(ia) of Hindu Marriage act

Feel free to call

1. If you wish to divorce then there are two ways- mutual or contest. Mutual Divorce is the only hassle free process of divorce in India which takes only 6 months but for this there has to be a positive agreement between the estranged spouses. If the positive agreement cannot be reached then the only remedy for you is to file a petition for dissolution of marriage unilaterally which your spouse can contest. You are free to file a petition for dissolution of marriage on the ground of cruelty.

2. To retain the custody of your children you may file a petition for declaration of guardianship in the court of guardian judge.

3. During subsistence of marriage a wife has the right to reside in her matrimonial home. Only after the marriage is dissolved by the competent court she can be evicted.

4. If she files DV case then you can contest it fittingly. She may also file 498A, in which event you should seek anticipatory bail.

1. Well.the court is India prefer to maintain status quo as far as custody of the child.

2. So if you retain the physical custody of the child/children while going separate then there is no question of parting their company and in that event your wife will have to seek recourse to law to get their custody.

3. So if your child/children are willing you can get separated from her. file suit for divorce and keep the child/childern with you.They would be natched away from you by the court . At best the court may grant her visitation rights.

4. The same thing will happen with you if she moves away from you taking the children along with her.

5.Do not worry about 498A case or DV case as those cases cna be fought in court quite easily and getting bail in 498A is a routine manner nowadays.

So remove all your phobia from mind and refuse to succumb to any pressure tactics or intimidation.

In case, if you initiate the divorce proceedings to prove the allegation of your wife's illicit relationship or the drunk habit, you have to produce documents like photos, videos, chatting details and statement of the mobile calls. If you proved all those allegations by producing documents and evidence then the Court may consider your plea of child custody, otherwise the court won't give the child custody to you. Being a mother naturally she would get a child custody. Once you initiate the above proceedings the following repercussions may start 1.she may file a criminal case against you for domestic violence and dowry harassment. 2. she may file a maintenance case .3. She may claim child custody to corner you. These are things may happened. Therefore before initiating any proceeding, collect the evidence to prove your allegations and then proceed.

You need to file the divorce petition on the ground of mental cruelty against her along with with custody of your children with you in the court of law with the help of any local good advocate.

Try to collect all he evidences and witnesses which shows the bad nature of your wife which is not good for your child's future.

Hi,

You do not worry about the custody of children as the father is natural guardian to the child but till 5 year of age the child remains in the custody of mother.

Now you need to see the prospective of your life and peace in the life and choose between this life and divorce which ever you find better.

The cases are DV are common and if the parties wish to go for divorce this will come on the way.

Try to go for the mutual my concerned divorce in stead of contested coz that is more time consuming.

Good Luck!!

Discuss the idea of mutual consent divorce with her, and also propose that you'll like to retain the custody of the children. If she concedes to these terms of yours, you two may obtain divorce by mutual consent which is the least cumbersome and easiest way to come out of this marriage.

If she's not ready for mutual divorce, contest a divorce against her. Seek the custody of children by moving a requisite application under the provisions of the Guardians and Wards Act.

Hello,

I understood your problem and my answer below.

My strong advice to you is start collect all the evidences which will help you to prove her that she has an extra marital affair which means adultery. Also collect much evidences regarding that she drinks often and behave vulgar towards to kids and you which spoils the life of the kids and family. Once you are having strong evidences then file a divorce case against her on cruelty ground and simultaneously you file a child visitation and custody along with the main petition or file custody petition after her counter.

Hindu marriage act sec 13 i (a) for cruelty

If I'd is well educated then don't forget to quote that in your petition.

Note: once you file the divorce then police cannot file any FIR against you on her complaint since the dispute is already pending before the court.

So, if you file the petition early then it may protect you from false FIR.

Hi

Your mail query did not mention about the current location of the spouse. If you both are staying in india in such a case you have to collect credential evidence in respect of adultery of your wife. As you have stated in your mail that your wife having exra-marital relationship with other people. You have further stated that she is habitual of drinking. You have further stated that she is by nature short in temper and she always fought with you on petty issues. If you are capable of collect the evidence in this regards. I may say that you can file a case for custody of your child. But only difficulty would arise that as per law the kids below then 8 to 10 years always prefer to be with mother custody. It is therefore, requested you to get collect such important digital and electronically evidence to show the court about the welfare and paramount consideration of your children if the children will remain with your wife custody in such a case entire future of your kids will ruined. There are number of judgments in which it has been held that the custody of the child can be given to the father if court thinks that the children future are in great risk.

Regards

G.L.Soni

Advocate

1. You have not mentioned as to where both of you are staying now? In India or in Vietnam from where you have posted your query?

2. You shall have to decide as to what do you want from this matrimonial relationship of yours. Do you want to continue it or want to terminate the relationship?

3. It is also to be kept in mind that divorce is the 2nd most stressful event in one's life and you never know wheather your next partner, if any, will be any better.

4. However, if you have decided to terminate the relationship, start collecting evidence of all her cruel acts by audio/video recording her such acts/statements etc.

5. Being fully prepared with irrefutable evidence of her cruel behaviour on you file a divorce suit on the ground of cruelty.

6. You can also file a child custody case since your wife is no longer their natural guardian since both of them are more than 5 years old.

7. You can also negotiate with her and jointly file a Mutual Consent Divorce Petition on agreed terms which will be disposed of within 6 & 1/2 months from the date of its filing.

Are you living in india? location?

If she has ugly record of alcohol, leading adulterous life, it is unsafe to leave the kids.

Instead, plan to leave the place along with kids and set up a separate house out of the location for time being. If you move to different location, she may find difficult to locate your whereabouts, during that time, you can file a petition in the nearby court to dissolve the marriage. Then, even if she files a petition in her place for DV and 125, it will be difficult for her to execute.

It may look a difficult option, but better than living in hell.

Where are you living right now in India or in Vietnam?

regards

You can't tell her to vacate the house till you are not divorced. If she files domestic voilence case you need to fight the same and contest it. There is no other solution than divorce in your case. You can file Divorce and custody case and prove the court that the future of your kids is not safe with her