• Divorce and Custoday

I have been married for 8 years . My husband has moved a custody and divorce petition four years before and have been granted an interim custody of my 4 years old son. I fought it by appealing in high court and there were a mutual agreement that my son son will stay with him for 4 days and 3 days with me. It was running smooth for an year my husband said one day he will not send my son. I moved an contempt petition in the high court and struggled a lot for 3 months to bring back my son and got a temporary sole custody. I am having custody of my son for an year and my son is faring well in education with good academic records and doing well in extra curricular activities such as Karate, yoga. As still the permanent custody and divorce is pending in lower court, my husband came up with the proposal for settling me with 15 lakhs and giving me the permanent custody of my son. I was very suspicious about his word on giving the whole custody. I felt the amount is meager and it is not a good one time settlement for me and my son. When the case came up on the court, I asked him in front of the judge, he said that he is not ready to relinquish his son and want to fight for the custody if it becomes contested divorce. I am not ready for any mutual agreement with respect to custody as my son is only 7 years old and i don't want my son to undergo the same pain of being dragged into two houses and between parents. I am very well qualified and if i resolve my custody dispute i can move abroad with my son which will be also good for my son's future. My son is everything for me, i told my husband that even i am ready live with him just as a friends or parents and he is not ready for it. I don't want to stay in the same locality of my husband after divorce and want to move abroad with my son. Having already seen a foul play from my husband i am not ready for any mutual agreement on custody matter as i have seen several doctypes where mutual agreement custody terms has bee broken. Now the question is
 Shall i request the Family court judge to dispose the custody petition first and possibly agree for mutual consent later?
Hoping that i will get complete permanent custody with visitation rights to him, how can i move abroad later legally with my son?
Asked 4 years ago in Family Law
Religion: Hindu

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10 Answers

You should agree for divorce by mutual consent

2) consent t terms can provide that you would have sole custody of your son

3) that you are at liberty to go abroad with your son

4) since you are highly qualified and working you would not get substantial amount as alimony

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

If you are in decisive position of divorce the proposal of alimony and permanently custody of child in your favour should be negotiated at least for alimony.

The maintenance of the son should be taken separately and if the son is in your custody he will not be able to take him overseas.

Shifting from the locality to other locality is a short term solution and will not help as your son grows up.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1) Better you get permanent custody of your son's and then take judicial separation from court so later in life you should not face any problem. So you can flies easily.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

As already interim custody application is disposed off, permanent custody should be disposed off in the due course. If visitation right is granted, then you may have to seek leave from the court in future to remove him out of the jurisdiction.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Hi, if he is ready to give you the permanent custody and the divorce with alimony of 15 lakhs, then why do you want to contest the petiton .. You can settle with your son in abroad with a handsom amount .. Personally , I will suggest you to arrive at a mutual agreement and start a fresh life as all these proceedings will go on for years

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0


You can move on as decided by you.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

If you settle the matter and file consent terms before court then he will not break the same. You can hold him for contempt if he does so. Secondly once you get sole custody you can move abroad if the visitation rights permit you for the same. As per me a mutual settlement before court is beneficial in your case by filing consent terms.

Prashant Nayak
Advocate, Mumbai
27291 Answers
88 Consultations

4.4 on 5.0

Child custody case is a different subject and different case hence it can be conducted separately.

There is no possibility for a joint trial too in this regard because both are totally different subjects.

Though you will be getting custody of the child, if he smells that you will be leaving India with the child, then he may file an injunction suit agaisnt this since he is having visitation rights or even otherwise he is the biological father and as per law the father is the natural guardian.

Plan things properly and never make any hasty decision that may become fatal to your own case.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

1. You can certainly wait for getting permanent custody of your child and thereafter opt for the MCd proposal forwarded by your husband provided he remains agreeable for the said MCD after loosing the custody battle.

2. You are not legally entitled to take away your son out of the Country without the consent of his biological father if he has the visitation right.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

Welfare of the child is of paramount importance while deciding the custody of the child.

Yes you may request the court to first decide the custody, but the court usually does not take into account such request and disposes off the each case individually.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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