• Wife filed a petition in court

Mine is a love marriage in Dec 2008.  Both were working in Hyderabad. In July 2009, wife left to her maternal home in Vijayawada (another city in Andhra Pradesh) as she is conceived & 3 months due to delivery.  Blessed with baby boy in Oct 2009 & since then she started doing emotional blackmail that she will keep our son with her parents else she will give divorce.  I clearly told her that i will allow her only if she comes with Kid.  I was living alone in hyderabad till July 2010 & one fine day she called me and said that she got a new job in hyderabad & will join me along with kid.  Finally she joined me but without kid.  When i ask for bringing the kid, she tried to attempt suicide.  Her parents have come to my place & took their daughter and approached Police station.  I was called to be in station & i met SI there who finally understood that the problem is with my In-laws that they are not allowing me to live with my family. So he suggested my wife to live with me along with kid for which she left the kid with me & went along with her parents.  Again after a week, i got a call from Police commissioner, Vijayawada asking me to appear in his office along with kid for which i appeared in his office.  My wife & in-laws complained that i kidnapped the kid & hence he put the same question to me for which i said that they left the kid with me in hyderabad police station a week ago & you can very well check with Hyderabad police.  He immediately called Hyderabad Police & got to know that my in-laws made a false allegation thus he suggested my wife that  Kid has to be with his mother & she cant leave my son with her parents in vijayawada.  She said Ok & within a week her parents moved from vijayawada to hyderabad on permanent basis.  Wife, In-laws along with kid started living in hyderabad. I made lot of trials to made her understand about family  but she didnt understood.  Again in May 2012, i called her & said that i cant take this any more & approach law for which she said that she is willing to join me along with kid.  After a week, she called me and said that she needs to go to UK on project work basis for 3 months which ends in Sep 2012, till that time she cant join for which i said Ok.  As i am alone in hyderabad, i frequently visited my in-laws home in hyderabad to meet my son.  Meanwhile, i got a new job & moved to Bangalore. I put my son in school there itself in hyderabad and still under my in-laws care. My wife returned from UK in sep 2012 & started postponing her transfer to bangalore.  I suggested her to resign the job that i will take care both of them but she claims that she had bought a house & car for her parents through Loan and she needs job to repay them.  She come out with an idea that she join me alone as she has to go to work. i.e, to take care of her parents', she needs to work.  As she is working, she cant bring the kid to Bangalore. Finally, i am the one who is away from my son because of my in-laws. On & off the fights were happening over phone & finally in Apr 2013 she said her transfer request got approved in her company also with work from home option & will move to bangalore along with kid provided her father accompanies her in bangalore for first 1 month for which i agreed. finally she moved along with kid to bangalore in Apr 2013.  My father in law was living with us. My wife got conceived again. One fine day she told me that she applied for kid's passport without my consent & she received the same.  She applied for Australian Visa for which she told me that we will live in Australia.  I said, without my consent you have applied for passport & now you are asking me to move to Australia.  I can come to Australia provided we should live together by taking care of our son on ourselves without any fights for atleast one year in India. But she denied for that.  She got a sense that i am not going to give consent for the Visa then she insisted on abortion for which i didnt agreed initially but she again attempted suicide then i had to accept for the same & she underwent abortion.  I requested her to postpone her plans to move to Australia for which she replied that she wants money in life & hence it cant be stopped and if required she can leave me & alone (with kid) fly to Australia.  Later i realized that her brother also applied for Australian Visa & entire family has plans to move there.  In Jun 2013 she confirmed that she needs my consent on visa else she wants a divorce so that she doesnt need my consent for kid to fly to Australia.  I have approached police in bangalore & explained the things.  They called my wife & tried to counsel her but she didnt listened anything & again left to her parents house in hyderabad along with kid.  In July 2013, i have received a lawyer notice stating my wife allegations that i harassed her & she needs divorce on mutual consent basis else they file a criminal case as apt.  I have sent a reply through lawyer that all her allegations are false & i am not interested in divorce.  Then i got a call from her advocate demanding 20lakhs for which i said i am not going to give divorce & also any money. Since then no communication exchanged between us. I tried to call her to talk to my son on his birthday in Oct but wife didnt answered the call. I kept myself quite & waiting for things to unfold. 

On 12 Dec 2013, I am in receipt of Court Notice (Form No.III under Rule.7) as my wife filed a petition in Family Court, hyderabad.  it is not speaking anything about the details of petition but asked me to appear in court on 9th Jan 2014.  Also mentioned "Take notice that on the day before mentioned after hearing parties who appear directions will be given by the judge as to the date of hearing before a counselor of the family court and other matters concerning the petition".

I believe that she might have filed for divorce .  My query is:

1. If i say NO what will be the next course of action in court
2. If i say YES, but i need my Son, will court gives my son to me
3. Can i approach law that my wife applied for kid's passport without my consent. (Might be forgery signature of mine or by producing affidavit that husband derserted after conception/delivery).  In any case, it is false affidavit & it has to be cancelled.
4.  If i say YES & if court doesnt allow my son to live with me, should i liable to pay maintenance for my Son. If i say yes for maintenance & also can i seek visiting rights (but my wife is planning to leave country). Also let me know if i say No to maintenance as because of her greediness towards to money she is moving to abroad & why should myself & kid should be penalized in any form.
5. Can they now file 498 a or any other case

Request you all respected Advocates to help me get out of this critical situation of my life.

Thanks
Asked 3 years ago in Family Law from Bangalore, Karnataka
Religion: Hindu
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.
Feroz A. Shaikh
Advocate, Mumbai
216 Answers
58 Consultations
5.0 on 5.0
While I agree with Mr. Shaikh, yes, they can initiate proceedings u/s 498A even during the trial.
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0

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