• Legal guidance on marriage issue

My Spouse has left the house along with my 5 year son without any intimation. When I followed with about her return status that time she informed me that she is going to file petition for divorce.
She also ask me if am ok with mutual concept application.

I dont want separation from my family and retain with marriage life. Also my son is with her I can take back my son from her before she begins with legal procedures

What all options I have?
Asked 1 year ago in Family Law from Greater Mumbai, Maharashtra
Religion: Buddhist
Hi, if you willing to give consent for mutual consent divorce then only both of you go for mutual consent divorce otherwise both of you can not go for mutual  consent divorce.

2. If you want your son  to your custody then you have to seek for custody  of child in the family court. 

3. It is my considered opinion better tried to solve the matter amicably.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Hello,
1) Marriage cannot continue unless both the spouses are agreeable to the relationship. So if she files for divorce you can contest it, but ultimately marriage cannot be enforced upon.

2) As you want the marriage to continue talk to your wife and find out if you can get her back with the child. Try to resolve the problems that promoted her leaving the matrimonial home with the child.

3) Both the parents have right to child custody. You cannot take the child away by force from her now.. If divorce is filed for you can move a p petition for child custody or visitation rights.

,4) If negotiations don't work it is highly advisable to agree for divorce by I Mutual Consent. It is more expedient and you can mutually decide upon child custody, alimony etc. Divorce will be decided in 6 months.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
1) you should agree for divorce by mutual consent . 

2) you can in consent terms provide for joint custody of son 

3) in the alternative ask for visitation rights 

4) custody of minor son is generally given to mother 

5) if you dont agree for mutual consent divorce wife will file for contested divorce against you .

6) mutual consent divorce takes 6 months while contested divorce petition may take 5 years top be disposed of 
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
1. Since you do not want to end your marriage you may contest and oppose her divorce as and when she files it. The court will give you an equal opportunity to oppose her divorce petition.

2. To get back your son you have to file a case for child custody. To file for child custody you need not wait for her to file for divorce. 

3. If she files any other cases against you then you can contest them.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
File a petition for restitution of congugal rights before the family court 
Siji Malayil
Advocate, Bangalore
7 Answers
0 Consultations
Not rated
Dear Querist
legally you may file a RCR petition before Family Court under section 9 of Hindu Marriage Act-1955

you may file a child custody case against her before family court under Guardian & wards Act.

you may file a complaint before district legal service authority and pray for mediation and try to settle the matter amicably.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
If you want to retain your marriage life, it is advisable to file a petition for restitution of conjugal rights. Otherwise for a peaceful separation it is advisable that u agree for mutual consent divorce and in the terms u can ask for joint custody of the child along with visitation rights.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Lodge a diary to the police and file a suit for Restitution of Conjugal Right in District Judges or Family  Court along with an application for custody of child.
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
1) RCR is useless . you cannot force your wife to stay with you 

2) even if you obtain a decree if you r wife refuses to stay with you you cant force her 

3) if wife does not return with 1 year after decree you can file for divorce 

4) your wife is asking fr divorce by mutual consent . garb the offer . 

5) you will other wise spend lot of time and money  in running around courts
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
1. What do you wish to lodge a diary against her for? Which law has she violated?

2. Restitution of Conjugal Rights would not have any bearing on your right to enter defence in the divorce proceedings as and when she files it.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. No Court can force an unwilling wife or husband to rejoin her/his husband/wife,

2. Court can pass order directing her to join you but can not force her to join you if she does not want to,

3. So, the  only way left before you is to cajole and convince her to rejoin you,

4. Till 5  years of age, mother is the natural guardian of your son. So, you are not likely to get his custody immediately.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1. You can file RCR case against your wife,

2. If she is directed to join you but does not join you, she can not be forced to comply with the said order of the Court,

3. If she refuses to join you even after being directed by the Court, then it will be easiler for you to get divorce on the ground that she does not want to stay with you even after being directed by the Court,

4. There will be no other benift to be derived by you by filing RCR petition,

5. You can file an application seeking custody of your son on the ground of your son's welfare.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
You may file a dairy.

RCR will be helpful and RCR will be filed before Family Court along with the application of Child Custody.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0

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