I will try to answer your questions as has been enumerated:
1. If you say NO for divorce, you should file a counter claim under CPC Order VI; filing for restitution of conjugal rights as you do not want separation and may opt for continuing relationship with your wife due to your son;
2. If you say YES. Then, the laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or 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.
Further observation by the Hon'ble Supreme Court on this is as under:
The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’. As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfill the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘. To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship. It was not to be, the Karnataka High Court held several years later that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’. Again it was the sagacity of the Supreme Court hearing an appeal in the same matter which held that ‘we make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child’ . Despite the over- arching observations of the Supreme Court in the matter of child custody it is thus, often, the subjectivity of an individual judge which decides a case of child custody.
Based on the above, and the situation as described by you, there are better chances to have custody of your son, if the matter is presented skillfully to drive home the point that you, the father can provide best support for his current and future needs.
3. If forgery is the case, then you may file a RTI and verify the credentials, and, if forgery is found then you may file a police complaint against it and in the same court from which you have received the summons to appear; request the court to stop her from taking your child with her without your permission; or in other words by forging a legal document, which is illegal;
4. Maintenance shall not be applicable in your case as your wife is independent and has her own source of income; legally barring her to claim maintenance for herself and also for the child. However, depending on the circumstances of the case with regard to how it is presented in the court, the maintenance of child might be applicable to you. You can definitely apply to court for visiting rights;
5. 498A can be filed against you. However, in view of the circumstances with regard to visiting the commissioner and related correspondences with them. You may secure an interim anticipatory bail of 72 hours for your family in an event if the FIR is lodged against you.
Thanks.
