• Alimony and child custody

My wife is 12 pass but she is not employed. Never supported me for my work or in home making . My mother and my brother cooked for her and she is always abusive and threating me and everyone that she don't want to live in my house as we don't have enough aukaat according to her . For past 3 years she had been doing this . She hardly stays in my house. Everytime she comes for 2 or 3 months and then again start doing her abusive and arrogant behaviour then her parent or relative use to come to my house and then starts quarrel and take her back to her house by saying that please give last chance to my daughter she Will not do like this next time but story remains same. I have enough videos and audios and phone call recordings. Now this time she has gone far ahead. This time also she stayed for 3 months and started misbehaving to my me, my brother and my mother . She continuously abuses my brother and mother for no reason. I stay in Assam for my job and most of the time I am at outstation for my job. She threatened everyone that she can do anything to get out of here even she can kill anyone . Will I get justice from this . I am low earning person and I want to keep my child who is 1 year old with me as they will not take care of my child properly. If I Will give money to take care of my child they will use it for their own. They threat me to even kill me.
Asked 4 years ago in Family Law
Religion: Hindu

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18 Answers

File fir divorce on grounds of mental cruelty

2) wife abusing mother in law , brother in law and husband amounts to mental cruelty

3) wife refusing to stay with husband amounts to mental cruelty

4) since your child is one year old you would not be awarded custody of child

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

This is my response to you:

1. You will have to file for separation and then ultimately divorce;

2. Also, file for full custodial rights of your child and no visitation rights for your wife;

3. Also complain to the police station against your wife under DV act and IPC;

4. Also, make sure that you protect yourself by not letting her claim maintenance from you;

5. Also file complaint against your wife's family.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

This is my further response to you:

1. She will file for alimony and you can throw it out stating that you are earning less income;

2. You can show your IT returns as proof;

3. She will file dowry case;

4. That is why approach the police first before she does;

5. You can tackle the dowry case if her accusations have no merits;

6. Therefore take the steps from your side first so that you get the upper hand;

7. Engage a lawyer to explain you better the process of separation, RCR, divorce, maintenance, custody etc.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1) If you can prove that you can take care you your child better than her. Court may grant child custody to you.

2) Alimony may grant to her by court according 25 - 30% of your net salary in hand after deducting all monthly expenses of yours.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

I have come across many cases like this. I can understand your problem and your family's problem. It is unfortunate that you could not lead a happy married life. There are some incidents that happen in your life and those incidents are so strong that they change your DNA. They say marriages are made in heaven. But so is thunder and lightning. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.

You and your family have a right to live life with peace and with happiness. Your wife has no right to threaten you.

I would firstly suggest you to immediately file a police complaint as you have all the evidences with you to prove your say.

So far as divorce is concerned you have two options-

1. You can file a mutual divorce case. Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Please keep in mind that mutual divorce proceedings takes only 6 months to settle and it is an easy process.

2. If your wife doesn't agree for mutual divorce then you can file a contested divorce petition in the ground of mental cruelty by wife. Contested divorce proceedings can take up to 5 years to settle.

So far as child custody is concerned if divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians. Please understand that over the years; there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs are the only criteria.

The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding the issue of custody and access.

If you have an apprehension that your wife will file a false dowry charges then you can seek anticipatory bail. Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek ‘Anticipatory Bail’. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges made against him/her, most commonly due to professional or personal enmity, as it ensures the release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the High Court and citing section 438 of the Criminal Procedure Code as well as giving proper reason, apply for it. If the court, based on a number of conditions and the nature of the case, sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she will be immediately released on the basis of the anticipatory bail.

There are many ways in which you can deny alimony to wife in this regard so better would be to have a detailed discussion.

At last I just want to say that human progress is neither automatic nor inevitable... Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, New Delhi
312 Answers
5 Consultations

4.0 on 5.0

Please file a petition for divorce under Section 13(1)(ia) of hindu marriage act under ground of cruelty. The court may not give you custody of child unless you prove that the welfare of child will be at stake if it is with your wife. Provide all audio and video recordings as proof to claim divorce.

If your wife file for maintenance 1/3-1/5 of your salary will be awarded as interim maintenance. If they file dowry harassment case get anticipatory bail.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

You can file for divorce on grounds of cruelty under the section 13 of the Hindu Marriage Act reactions of your wife against you and your family definitely constitutes cruelty as per the provisions of the Hindu Marriage Act.

Your mother can also file a case against your wife under the Protection of Women Against Domestic Violence Act, 2005.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

As you have stated in your query that you have ample evidence in the form of audio and video recording, these evidences will protect you from any false cases filed against you and your family by wife.Also, try to procure all the bills of the expenses incurred by you during the wedding.

You would have to pay maintenance for wife as she is not employed which would be decided by the court. Generally it is 1/3rd to 1/5th of the total income of the husband.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

If wife files dowry harassment case apply for and obtain Anticipatory bail from sessions court

You have to pay wife alimony as awarded bycourt

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Firslty, I advice you to please a soon as possible you should file a divorce case on the ground of crueity.

Secondly, as if she file cases on you after filling of your divorce case then credibility will be at stake of those cases.

Thirdly, as far as the alimony I’d concerned if she is at fault then no need to give anything to her at the end of the case.

Fourthly, yes you may not get the custody of the child but may be given visiting rights.

Fifthly, you an ask for the expenses list from them to ensure that the money for maintenance is been used for the child.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Hello,

You may file an FIR against her also you can file a case of divorce on the grounds as mentioned by you. Immediately file an FIR IF life threats are being passed.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

If you file a case and as a counterblast if she files case of dowry and harassment then the case can be defended well by you.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Sir you can file an complaint against her for intimidation and can file a divorce on ground of the cruelty. Further if the house is name of mother she can take an injunction order against her to enter the house from the civil court.

The recordings video can be presented before court as the evidence of her cruelty.

Further see generally the custody is awarded to mother if child is below five but you can contest that as for the child custody the primary thing is the welfare of child and you can show using evidence that mother is not at all capable of taking care of child and she gonna ruin her future.

Further see if she is not working the maintenance has to be given but you can contest same by that cruel wife is not entitled to maintenance as she herself has walked out of relationship

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

See if they file dowry charges they need to prove same onus is on them further you can file first then it would look the charges are filed as to counter your case secondly produce evidence to effect that she is wrong and you have not demanded dowry and neither there was any domestic violence,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

hello,

you should file a divorce petition on grounds of cruelty. she will obviously make false dowry charges against you but she has to prove the same in the court and if she really brought something with her that constitutes part of her streedhan and hence has to be returned.

you have enough evidence against her so proceed before she files a complaint against you.

maintenance amount has to be paid by you if she files for it and the alimony can be reached through a negotiated settlement. for child custody, you have to file a separate petition.

regards

Rahul Mishra
Advocate, Lucknow
13757 Answers
65 Consultations

5.0 on 5.0

1. In these circumstances you are free to file a petition for dissolution of marriage on the ground of cruelty. First record her acts though so that you have evidence to prove your case.

2. She can surely hit back by filing cases of maintenance and 498A. If 498A gets filed then apply for anticipatory bail.

3. To stop your wife from illegally uprooting the child from your custody you may seek an order of injunction against her.

4. Maintenance has to be paid to wife by husband if the former is not self sufficient but you can take the defence that she left the matrimonial home without any justified reason.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Under the circumstances you may decide whether to continue the married life anymore or not.

If the situation is intolerable then you may plan to file contested divorce case on the grounds of cruelty.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

You can challenge all the cases on merits before the concerned trial courts accordingly, you can await their actions.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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