• 125, 498A, DV act, child custody and sec 24 divorce

She filed 125, 498A, DV act, child custody and sec 24 divorce. The DV act judge after going through some of my evidence gave interim statement that she is having an extra marital affair and therefore DV act is not applicaple. But still gave INR 10000.00 pm for maintence of the child. I spent 21 days in JC under 498A, which was files 1.5 yrs after she left my home. But the CRPC 125 judge gave maitenance order of INR 44000.00 pm as my salary was INR 66000.00 pm. At that time I lost my job due to poor performance and long absent. However, we finally made an out of court settlement of one time full and final payment of INR 700000.00. I have paid the amount in whole. That time the agreement was made for my child visitation 28/05/2015.

Since then she is not allowing me to see my son. She has not been able to marry her brother-in-law till now. After staying unemployed for 2 yrs I again got a job and my salary is INR 76000.00 pm. She does not know that I am employed. Now whenever I want to see my child she says that the boy does not want to see you and threatens me with further judicial actions.
So my questions are:
-What are the cases she can file now?
-What will be the maintenance amount I have to pay? my son will be 12 coming jan 2019.
-Can she take my property, FDs, Mutual fund investments?
-If I get an opportunity to go abroad can she stop me? 
-Can I ever get access to my son before he becomes an adult? He was taken at the age of 4yrs 10months, Applied for custody and visitation but it seems that expecting justice is the biggest crime in this country.

Thanks in advance for your time and patience.
Asked 5 years ago in Family Law
Religion: Hindu

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17 Answers

Hi, legally she cannot claim anything but for a instance you may have to contest the legal battle again if she procced falsely...It is advisable to let your son turn major and then you can simply keep him with you ... However , you can file contempt of court if you want to proceed legally against her

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

- I think the agreement(out of court) must be containing a clause restraining each of you to file any further cases on each other. Scan the agreement for this clause.

- You have to pay the maintenance in accordance with what's agreed in between you and her and recorded in the Agreement.

- No, she claim any of these since they are your self earned assets.

-You are free to move abroad.

- You will be able to him, do not worry.

Vibhanshu Srivastava
Advocate, Lucknow
9600 Answers
303 Consultations

5.0 on 5.0

Hello

The cases must have been closed after you reached a final settlement. Now you are divorces so those sections cannot be slapped upon you again as it would be an abuse of the process of law.maintenance under DC ac tg and s125 cannot be awarded simultaneously and if it was done it was wrong although you have paid a lump sum amount.

You should file a revision against the maintenance amount that is being given by you as she must be working somewhere and therefore you are not entitled to maintain her.

She is not honouring the final settlement and the court orders and hence a contempt petition should be filed.

after final settlement she is not entitled to anything and she cannot demand anything from you.

Don't interact with her directly and file a case in the court.

Regards

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

She has already filed all the cases and staying separately so as such no case by her is maintainable now.

You are already paying the child support and paid one time maintenance to mother so as such you are not liable to pay though in case she files for extending child maintenance same.can be contested.

No she has no right on your movable and immvoble property.

No she cannot stop further kindly clearity 498a DV against you quashed you or not if not file for quashing of same.

Yes you can get justice file a petition in high court to expedite the custody case.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You have already filed for child custody and visitation rights

2) wait for court orders on your application

3) you are at liberty to go abroad for work purposes

4) wife has no share in your property , investments

5) wife has already filed DV / 498A against you

6) sh cannot file any other cases on you as she has accepted X amount in full and final settlement

7) file for divorce by mutual consent

Ajay Sethi
Advocate, Mumbai
94692 Answers
7527 Consultations

5.0 on 5.0

1. if there was any terms of visitation of the child in the mutual divorce petition you can file an application under section 26 of the Act. if there is no such terms then file a fresh custody suit and seek interim visitation rights.

2. The maintenance is generally fixed @ 1/4th of your income.

3. The movable or immovable assets are not liable to be shared with wife.

4/ No one can stop you from going abroad unless court has already put such restrictions.

6. File cases as advised above to see the child.

Devajyoti Barman
Advocate, Kolkata
22815 Answers
488 Consultations

5.0 on 5.0

1)wife can file application under section 125 cr pc for maintenance of child

2) no DV case is maintainable after divorce

3) no dowry harassment case is manintinable

3) maintenance would depend upon your income . Both have to should er responsibility of child equally in proportion to their incomes

4) she has no share in your property . Investments

5) you are at liberty to go abroad for work purposes

6) you can get access to your child

Ajay Sethi
Advocate, Mumbai
94692 Answers
7527 Consultations

5.0 on 5.0

Now she cannot file any case on you.

The mother and you have to share the expenses of the child.

No she cannot take and have any right on your property FD.

No she cannot stop you to go abroad.

Yes you can file for custody or visitation rights for your son.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

If you have got mutual divorce then it is wise to go to abroad and get job there. There will be no issues if you go to abroad with the permission of the court if required. Since child is the residential home you can get visitation rights easily. For other issues you may either get a stay order or quashing order if 498A case is pending in view of mutual divorce.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

1. At the time of getting the divorce you must have filed the terms of condition in the court, she can not go against the same. If it is mentioned that no party will file any kind of case against each other then she can not file any case.

2. if one time settlement has been paid, which includes the welfare and upbringing of the child then you will not have to pay anything.. However, if the case is filed and the court allows maintenance for the child then you will not have to pay amount for the luxuries.

Anilesh Tewari
Advocate, New Delhi
18078 Answers
377 Consultations

5.0 on 5.0

No she can not stop you from going abroad.

Kindly share the copy of the conditions on which the divorce has been taken and then only it an be told that whether you can take the custody of the child or not?

Regards

Anilesh Tewari
Advocate, New Delhi
18078 Answers
377 Consultations

5.0 on 5.0

1. She has already filed all that she could.

2. If full and final settlement had been paid during the mutual consent divorce then she cannot claim maintenance now except for her child.

3. In so far as the maintenance of child is concerned the liability has to be shouldered jointly by both parents.

4. After the mutual consent divorce she is estopped from claiming any maintenance from you.

5. UNless there is a warrant of arrest pending against you or there is a court order which precludes you from going abroad you are free to go.

6. You are free to file a petition for declaration of guardianship and child custody under the Guardians and Wards Act to seek enhanced frequency of visitation.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

So my questions are:

-What are the cases she can file now?

She has already all the cases that can be possibly filed, however you have not stated the status of the DV case, 498a case, whether they have been disposed or not, if not you may have to pursue them

-What will be the maintenance amount I have to pay? my son will be 12 coming jan 2019.

Since the maintenance has been settled by paying one time settlement, this may not crop up again, you may reject the claim on the same basis.

-Can she take my property, FDs, Mutual fund investments?

No, neither she nor anyone has any right in it at least not during your lifetime.

-If I get an opportunity to go abroad can she stop me?

No, why should she stop you, however if the criminal case is pending then yo may have to obtain permission from the trial court for travelling abroad

-Can I ever get access to my son before he becomes an adult? He was taken at the age of 4yrs 10months, Applied for custody and visitation but it seems that expecting justice is the biggest crime in this country.

You have to follow up the child custody case properly, it is your fault that out of impatience you have agreed for discarding your rights for child custody hence dont blame law or judiciary for your own fault.

T Kalaiselvan
Advocate, Vellore
84893 Answers
2190 Consultations

5.0 on 5.0

-after the payment she has closed all the pending cases back in 2015 at the time of divorce.

So my questions are:

-What are the cases she can file now?

-What will be the maintenance amount I have to pay? my son will be 12 coming jan 2019. Do I have to pay the full amount as the mother has selected a very expensive education for my son?

-Can she take my property, FDs, Mutual fund investments?

-If I get an opportunity to go abroad can she stop me?

-Can I ever get access to my son before he becomes an adult?

You have repeated the same questions once again i your subsequent post.

However since you have given clarity this time, the answers will be as under:

1. Since she has already closed all her complaints she may not plan to file any case now, even if she does, no case will be maintainable.

2. You do not have to pay any maintenance amount since you have already paid her a huge amount as one time settlement, let she file a case, you can refuse to pay any on the basis of previous settlement.

3. She cannot claim a share in your properties nor in the FD amount as a right not even after your lifetime since she is divorced and have no rights in your proeprty even at the stage of intestate succession.

4. You can very well go to abroad as per your will and wish, she has no rights to stop you from travelling abroad,

5. you can file a child custody case, let she defend the same on whatever grounds,m she may rely upon, you challenge her reasons strongly since you are the biological father and natural guardian of the child.

T Kalaiselvan
Advocate, Vellore
84893 Answers
2190 Consultations

5.0 on 5.0

1. Out of the Court settlement should have legal seal also as otherwise she can deny the same and further claim amounts towards maintenance. If the said DV case is not yet over (since the Court had passed interim order only as stated by you) then she can pursue the said case. She can even lodge police complaint now u/s498A of IPC to harass you.

2. You have already paid the one time alimony of Rs.7 lakhs to her for which you shall have to contest her any petition for maintenance claim fittingly.

3. Wife will have no claim on the properties of her husband during his life time even being in marriage as per law for which your wife will have no claim on your properties during your lifetime.

4. Your going out of the Country can be restrained only with court order and not as per the wish of your wife.

5. You can now file a child custody case claiming that it will for better welfare of your child if you get his custody. You can also file a petition praying to enforce your child visitation right.

Krishna Kishore Ganguly
Advocate, Kolkata
27219 Answers
726 Consultations

5.0 on 5.0

1. If she has withdrawn all the cases filed by her without taking the leave from the Court to refile the same then she cn not refile those cases now. She can file the police complaint u/s498A of IPC to harass you.

2. Has the subject of your payment of one time amount settled to be paid by you been recorded in the MCD order? What was mentioned in the said notarised agreement signed by both of you in connection with the said payment? Was it mentioned that the said amount is towards the full and final settlement of the alimony for herself and your son? If yes, then you won't have to pay any maintenance towards your son's expenses.

3. The answers to your remaining queries have been given in my earlier post serially.

Krishna Kishore Ganguly
Advocate, Kolkata
27219 Answers
726 Consultations

5.0 on 5.0

1. The cases she can file now can be for modification of the Consent Terms to seek more money from you.

2. Depends on the amount sought by her for herself. As far as your son is concerned, was no maintenance amount discussed and decided? if not, then she will have to move the Court to seek maintenance on his behalf.

3. Your query is too vague but per se, she cannot take your property, FDs or mutual funds.

4. No, she cannot stop you.

5. Depends on the steps which you are willing to take. If the Consent Terms provided you access, why havent you sought execution of the same? Since you are aware that the child is being kept in a boarding school, you could have also sought custody of child under changed circumstances.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

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