• Child custody case before divorce

I work on a ship and currently on ship for next 6-7 months.

I have 2 kids (3 Yrs & 8 Yrs). I want to divorce my wife on the grounds of Adultery committed by her. My wife had left my house almost 2 months back after a heated argument between us and took the younger child with her. Later, we discovered that she has been seeing this man regularly. After I had gone offshore for my current work assignment, My relatives found out that she was in a hotel room one whole day with another man. We have verified this information.

Now I want to divorce her with mutual consent after I come back to land. The younger child is already with my wife. And she has agreed to keep the elder son with me. However, my in-laws are pressurizing me & my family to sign a bond which will give the custody of the youngest child to my wife. It seems that they have already filed a case in the court regarding the same.

I am okay to keep the child with her even after the divorce. But I dont want my family to sign any bond or attend the case in my absence. I need your advice to decide future course of action.

Please advise.
Asked 6 years ago in Family Law
Religion: Hindu

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13 Answers

Consent terms in divorce petition can provide that custody of younger child shall be with wife while you woukd have sole custody of elder son

Not necessary to sign any bond

Ajay Sethi
Advocate, Mumbai
94518 Answers
7485 Consultations

5.0 on 5.0

Sir before mutual divorce you both can enter into an MOU/agreement fixing custody of youngsters child to her and you taking custody of the elder son.

Further in case they have filed any child custody case it better to attend court and persue what they are demanding in case they have filed for custody of younger child same.can be commented before court and some body from your behalf can seek time that you are on ship further once.you are on land enter into agreement

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Divorce is between husband and wife and if it's a mutual divorce then both are the petitioner. But if it's a contested divorce then one is petitioner and one is respondent. If husband files a contested case then he must be present and in his absence if he authorises any one to attend then they can attend. But if Court wants then the Husband is required to be present. If you have not given any consent to file any case or take any action until and unless you are back from your work then you can inform this to your family. If still they take steps on your behalf then you can inform this via your lawyer so that no steps are not taken until you are back.

Moumita Mitra
Advocate, Kolkata
366 Answers
1 Consultation

4.0 on 5.0

Firstly, sir, as you have explained that she is in adultery, and the information of her been at hotel with that guy would be sufficient to prove your part.

Secondly, so you have an option of divorce on the ground of adultery where you may also not be asked to pay any alimony to her.

Thirdly, and will be easy for you to keep the child with you also as no law would allow the children to be with her as she is into adultery.

Fourthly, but yes if you still want to go for mutual then get ready to pay the alimony plus you may not get th le custody also, but yes would get visiting rights for sure.

Fifthly, I advice you to please let anyone of your family to appear in court otherwise ex parte would be there, and for mutual your presence is necessary.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

If both of you like to separate by mutual consent then first you both had to make an settelment deed under this you may put all the terms and condition under which both of you ready to separate then file a mutual divorce petition before the honble court ... If you ND your family would not like to attend the court.... No issue your advocate will done that for you....

Nishant Bhadoria
Advocate, delhi
73 Answers

4.8 on 5.0

This is my response to you:

1. Your family members cannot sign any bond without your authorization or without your POA;

2. You must engage a lawyer and sign the vakalatnama and let him/her appear in the matter on your behalf;

3. The court will only listen to your lawyer and not your family;

4. The court will do what is the best for your children;

5. But make sure you finalize the custodial rights and the visitation rights properly.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

hello,

file a case for divorce on the ground of adultery and contest the custody application on grounds of your wife having affairs behind your back which would have a bad effect on the children. besides, she would not be in a position to look after them if she marries again.

do not sign a bond or any agreement. she would most probably file a maintenance application and cruelty domestic violence application but before that, you should state all the facts and file a complaint against your wife and the person she is having an affair with.

regards

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

Dear Client,

If u can prove adultery, valid ground for divorce. Not bound to go with MCD and sing any bond.

Custody rest with mother, you can seek visitation rights.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Sir,

Firstly are you sure she has already filed a case against you.?

If not, then please try to go for mutual consent divorce. During the proceedings when the court will want to know the custody of children, where you can inform the court that you desire to keep the elder child with you and also seek permission of the court to meet your younger child on a monthly and or quarterly basis ( this condition depends upon your wife opposing such a condition and court allowing or disallowing the same).

Garima Anil Mehrotra
Advocate, Mumbai
514 Answers
1 Consultation

4.9 on 5.0

If there is any case pending before the court then without issuence of summon to you the court will not pass any order.

When you got the information about the case then write a letter to court or appear before the court through your advocate and take a date in the case which can be more then six months as your are not able to return before that and then fight the case as per your wish and will.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

You can refuse to give NOC, but the court may give her the custody based on her arguments, if she convinces court.

However it is your choice, but this should not hamper your rights on the child and it's future.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

1. Mutual Divorce is the only hassle free mode in India to end a marriage but it requires a positive agreement between both spouses on issues of alimony (permanent or monthly) and also child custody.

2. If a case for child custody has already been filed by her in the court then you have no option but to contest the same. Either await the summons to reach you or obtain the case papers from the court to see what relief she has claimed in her prayer and then chalk out your further legal recourse.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Since your wife has been caught red-handed committing adultery, it is you who should be dictating the terms of settlement and not your wife or her family. So under no circumstances, should your family agree to sign any bond or anything. Unless you really are ok and comfortable with giving away the custody of your children, do not agree to it. There is no such drastic hurry or emergency that cannot wait till you are back. N even if you are inclined towards signing any such bond, all details should be mentioned including the fact that the elder son shall be with you.

Also if she has filed a case then the papers of the same should be served upon you. You can always search online if any such case has been filed.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

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