My husband deserted me and my son over 5 years ago and has not been in touch ever since. Now he is asking for Divorce based on my condition (I am suffering from Multiple Sclerosis) . This is a neurological disease not a mental one, I cant walk properly but I can take care of my own needs. He came to know about my condition over 5 years ago and so far we tried to re connect but he was never interested, now he is saying I cant do household chores so he needs a divorce. Please advice if he can get this divorce? Also what options do my little son and I have ? I dont want my Son to suffer , he has always been with me and received no call or visit from his father. I dont want divorce but can we take legal action against my husband?
1) Object to jurisdiction of US courts as marriage was solemnised in India and US courts have no jurisdiction
2) file petition for RCR in India
3) seek interim maintenance from husband for yourself and child
4) US divorce decree would not be valid in India if you don’t participate in divorce proceedings
1. Your not being able to do the household chores is no ground for seeking decree of divorce. However, if he would have appied for annuolment of marriage on the ground that his consent of marriage was availed by suppressing the vital fact that you have been suffering from the said ailment and had it been disclosed to him then he would not have given his consent for the marriage, then the Court would have considered his plea had his allegation been proved. However, since you have already got a child now, his said allefgation, if submitted, will not be accepted by any court. So, he has no valid ground for seeking the decree of divorce legally.
2. You can claim maintenance for yourself and also your son from him and file an ap0plication for the same.
You can file Section 9 RCR and also claim Maintenance u/s 125crpc.
See you can firstly seek maintenance from husband for yourself and your child.
In case husband file for divorce same can be contested in the court.
Further for divorce since the marriage is under Hindu law he has to file before the Indian court as on grounds mentioned under hindu law and provide evidence of same.
See in my view what will be best to ask huge alimony for yourself in divorce proceedings and contest it divorce on ground of your medical condition is not maintainable.
There are several enactments in favor of married women. You must show heat of the litigation to your husband otherwise you cannot sustain in such unbearable atmosphere. You can file Domestic Violence case against your husband. The DV case proforma prayer is as follows:
HENCE THE APPLICANT HUMBLY PRAYS
He will not get divorce on that basis. Yes you can file for domestic voilence and maintenance case against him
When were you diagnosed with Multiple Sclerosis?
1) Yes, you can take action against your husband for living separately from you and charge him monthly maintenance and alimony.
2) No need to give divorce, you can apply for separation and ask maintenance for both of you under section 125 of CrPC.
1. Disease inflicted with in the course of marriage , even if incurable, is no ground for divorce.
2 So if you refuse to go for mutual divorce and your husband files contested divorce suit then also he would not get divorce unless there is instance of mental cruelty which you may have perpetrated upon her.
3. If your husband has deserted you then you can seek maintenance by filing case under PWDV Act wherein the court can award maintenance to you and the child @ 1/4th of income of your husband.
4. So act accordingly.
Respected Madam and Sir, Thanks much for your responses, Is it possible for my husband to claim custody of my child ? he has not seen him in over 5 years but if I refuse to accept for Divorce or if I ask for any maintenance he might threaten to seek custody of child. Again though I am not earning now, my parents are supporting me and I can find a job to ensure my child has a bright future. My ailment (MS ) is a neurological one and not a mental one. As the child is over 5 years would the father have the right to take the child away from me? I would like to clarify both my husband and myself are based in India (different cities though) .
Husband can seek sole custody of your child
2) welfare of child is paramount consideration
3) court would award you custody but grant husband visitation rights
Yes your husband can claim custody and guardianship of child based on being the natural guardian (as biological father). You have to fight it via your Advocate in court.
Natural guardian principle is the general principle, but court decides upon guardianship and custody not just upon this principle or any one single factor, but taking into consideration the emotional, physical, psychological and materialistic well being of the child and his or her wishes.
2) Yes stand to claim alimony too, and maintenance for your child. Again this has to be pleaded expertly by counsel.
3) So do appoint me as your advocate. Have already given number to call and come to my office
You may ask maintenance during pendency of the court case and even after divorce also. You son is also entitled for maintenance from his father. So, you are suggested to use your legal rights.
See if father has not seen child and also he did not support child then in that case you have strong ground to contest even he files for custody and court shall not grant same to him.
He has no right to take child away from you at maximum in your condition he can get visitation rights not custody.
You can object the said custody petition. You can claim heavy alimony from him
You can file a case u/Section 125 of Cr.P.C for maintenance you and your child.
It is the duty of the husband to take care of the wife and her children and maintain her and her children. But, at times the husband refuses to maintain the wife.
In such a situation, the wife can take the matter to the court and ask for her maintenance from her husband. It is not necessary always that the matter on maintenance shall come up only when there is a matter of divorce. Matter can be filed only for maintenance.
It is not necessary to file a divorce to get maintenance. Sec. 125 of CrPC says that a husband is liable to maintain his wife. The wife just requires to file a petition for maintenance before the court with the help of a family law lawyer.
Child custody and maintenance law are based on the principle of best welfare of the child, the parent with whom best welfare of the child exists is allowed the physical custody and other parent is given visitation rights for the child. The issue of child custody is up to the age of majority which is 18 years. The financial support of the child is responsibility of both parents and both are supposed to provide for it in proportion of their own income or financial status.
In Muslim law custody rest with mother.
Your husband can file for custody of the child, being the natural guardian of the child.
While granting the custody of the child, the welfare of the child would be of Paramount importance.
Also, the court does not interferes with the custody of the child, until and unless it is proven that one parent is unfit to take care of the child.
- Generally court keeps soft corner to give the custody of child to mother by default until and unless any serious health issues are there.
- Besides court shall also ask your child before taking the custody decision to be finalized about his choice.
- You are advised to file maintenance petition in Family court against your husband for both you and your child along with medical expenditure.
1. Mother is considereda s the natural guardian of her child up to his/her 5 years of age.
2. Your husband can seek your child's custody for which he shall have to file an application where in you shall have ample chance to contest. Child's welfare will be of paramount consideration while deciding on his/her custody.
3. it is not a fact that since you have not claimed maintenance, he has not claimed custody of his child. Rather you shgall have to explain later on as to how did you maintain your child being unemployed with out being maintained by your husband.
4. He has not bothered to even see his child even once in last 5 years is a good ground to establish that you should have the custody of your child for his/her welfare.
If you do not want to give divorce you can challenge his contested divorce case.
In the same case you can file a counter claim seeking restitution of conjugal rights by paying applicable court fees for this counter claim.
In the meantime you may also file an application seeking interim maintenance for you as well as for your child under section 24 of HMA.
You discuss with your lawyer at length and proceed on the advice received.
Since the father was not interested in the child for all these five years, you can challenge his child custody case on the same grounds and can reject his claim for custody
You have to convince the court accordingly about the child's welfare as paramount which cannot be had with him having the custody since he is not interested in the child custody but he is trying top put pressure on your for divorce hence he is using this tactics.
Consult your advocate also on this before proceeding.