• Property claim and child custody

My wife and I are looking to get separated by mutual consent. She earns more than me and used to share household expenses for the flat we are staying. Now she is claiming that the house hold expenses that she paid was for the EMI of the house and she needs all the money she invested in these 9 years back. She is even forcing me to sell the flat and give her half the money. I had bought the flat before marriage. She is also forcing me to pay for child support and education to the tune of 25k per month and 50% of the school fees. I have agreed for the school fees but if she needs so much money from me for supporting the child then I would like to have the custody as my daughter has been living with my parents while both of us are out for work. Our marriage is registered under Muslim marriage act
Asked 4 years ago in Family Law
Religion: Muslim

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11 Answers


She can not claim any share in your property.

Though she has the right to claim equal maintenance for the child.

If you have decided to separate mutually then I would advise you to settle on the terms of settlement also mutually.


Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Sir you both can mutually agree and can make an mutual divorce agreement and can file a declaration petition before family court to declare your divorce further since the flat is your property she has no right over it. Further you can claim joint custody of child further since the divorce is mutual then in that case maintenance and custody shall be decided by mutual consent .

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0


the maintenance provision u/s 125 is applicable in the case of Muslim women too. but here your wife earns more than you do. she cannot dictate terms to you and demand absurd allowance from you. try to reach an amount which is acceptable to you. the flat was bought by you before the marriage and she has no right in it. you shall get custody as per the Muslim law.


Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

1) your wife has no share in flat bought by you before marriage

2) all EMI have been paid by you from your account

3) you don’t have to sell flat and give her 50per cent of sale consideration

4) expenses for upbringing of child have to be split in proportion to your incomes

5) you don’t have to pay her 25k for maintenance of child if you are paying 50 per cent of school fees

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. It appears both of you are mutually parting ways and if that is so then force or coercion does not work. So unless and until you succumb to her extorting demands she can do nothing.

2. So place your own counter demands or agree on something which you can only fulfill. If she deos not agree then refuse to give divorce on mutual consent.

3. Put your own terms as regards custody of the child.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

it is the duty of husband to maintain his wife whether she is rich or poor. Only way a muslim women is not entitled to maintenance is when the wife herself has deserted her husband.

As per Shariah law Muslim wife is entitled to maintenance till the period of (Iddat) 90 days after the divorce and if the divorce is not communicated to her during this period she will be entitled to maintenance till divorce has been communicated to her.

Shariat law of Islam also provide for maintenance to wife, children and parents. In Islamic law it does not matter if the wife can maintain herself or not on her own it is the liability and duty of husband to maintain her.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0


It is better you decide the terms of settlement mutually and then go for divorce. You may also take help of permanent lok adalat in this regard.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

The alimony depends upon your mutual consent. If the figure could not be arrived then the family Court may be asked to work out a amicable figure which is acceptable to both of you by placing all the sources of income and expenditures of both of you.

Secondly the child custody will be given on the basis of welfare of the child as follows:


Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.




The Karnataka State Commission for Protection of Child Rights (KSCPCR)



Such Commissions are situated in Every State


Bombay High Court

Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016

Bench: A.S. Oka




Forum for Fairness in Education An NGO,


Union of India and Others. .. Respondents


5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

I think you both need to re-negotiate on the consent terms and settle the same after a round of mutual discussions.

In case you find that the demands of you wife are not reasonable, you are not mandated to go for mutual consent divorce in the said case.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

You can file child custody case under guardians and wards act if she is not agreeing for joint custody

She has no rights in your property, which is your self acquired property

For child maintenance you may inform her that you will share the expenses towards the child's maintenance.

You can draw all the conditions as memorandum of understanding and attach it to the propose mutual consent divorce (Khula), get it signed by her along with a witness from her side and one from your side too.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

If your daughter is above 7 years of age then you can get her custody under muslim law.

She can claim property only if she own it on her name. And that too only after talaq is done and iddat period has ended.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

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