• Wife came home with kids during divorce proceeding before hearing


I am new to this post and my case is a real tough one .Need answers quickly as my next hearing is on the 16th May ...............Ok here goes.
I had flied Divorce in 2013 and a Child Custody petition in 2014 December ,both are being contested by my wife.we have been married from 2002 and after marriage she did her BED and MBA and got selected in Central Goverment services and is currently posted in Hyderbad .She has the Kids with her.The trouble stared in the very first few years of marriage and she left home in 2010 and started living in the same city were we are domiciled .I used to go there ,on visiits and also stay there sometimes for few days at a time .In January 2012 she got selected to the Goverment service and left the rented home ,i helped and also went there with her to put her up and came back .The Kids soon followed her.I used to visit them sometimes and they used to come to my home on Holidays .This arrangement contiued till 2013 end when It really got worse and I applied for Divorce.She finally stormed out from house after the petition was received by her thru hand as the Court directed petition did not reach her for some reason or other.From 2013 March she stopped comming home and from 2014 december she stopped giveing the phone to the kids when i used to call ,hence my Child custody petition because of this .
We had Counclling and failed mediation attempts in courts whenever she was in the same city .......Sorry I did not mention I an living in KOCHI>,now the Judge had directed Counclling and Mediation in May 2015 and we did councelling and mediation on concecutive days 5th and 6th May and the hearing is fixed on the 16th May .
But the twist is on 12th May she came home with the Kids and started living as if nothing has happened ,I wrote a complaint to the local police station saying I fear there is some malafide intention ,but the police called us both on 13th and said they have noted the petition but cannot do anything as .A} case is Sub Judice in Court and B} She is still my wife and I cannot evict her.
Even though I enjoy my new found time with Kids the marriage is broken down and I need a divorce ....what can i do for the 16th May as now I cannot say I need the kids with an interim petition as technically the kids are with me .
SHE has got the Trump Card and hold all aces ...My Lawyer also does not have any Ideas.
I Humbly request  anyone to give some some advise ...Please.
Asked 3 years ago in Family Law from Kochi, Kerala
Religion: Christian
1. What is the next hearing for? Police has rightly refused to intervene as the matter is sub judice.

2. Filing of divorce by you does not stop your wife from returning to your house. If you were to stop her from coming back to your house then you should have sought a restraint order from the court. Now if you wish to evict your wife from the house you have to file a case for eviction against her.

3. That your kids have returned to you along with your wife does not in any manner impair your claim to their custody. Your case for child custody can proceed unhampered.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

1) as wife she has rights to stay in matrimonial home and you cannot evict her 

2)she must have come with kids only for some days during vacation and she is not going to stay with you for ever particularly so when her posting is in Hyderabad 

3) continue with your divorce proceedings 

4) custody of children is generally given to mother . you will get visitation rights 
Ajay Sethi
Advocate, Mumbai
45700 Answers
2688 Consultations

5.0 on 5.0

 do not worry go ahead with the proceedings and attend the counselling , if she attends court that day on 16 th may
 The case is not going to be week since she came back home on her own and continue to be away from conjugal rights which is the integral part of separation  and cruelty.
Yes you do not have to move an interim application for visitation rights as the permanent  custody  issue will be will be tried and decided by the court along with divorce petition.

Her return does not prove that she is right under law, even if she says she wants to save the marriage , technically court will have to look into the aspect of cruelty and desertion which is the ground based on the events mentioned in the petition and the present issues of cruelty from her part, i.e. incidents or her behavior etc,   can be  brought at the time of evidence.

Your case is as strong as it was before and continue with that if you do not want to continue in the marriage.
in many cases I have seen wife returns matrimonial home after getting summons and the case continues and divorce allowed . you are going to get the verdict after trial based on the merit of your case. yes your advocate should realise the changed situation and plan and present  the evidence accordingly.
If you think finally your wife has realised and ready to live as a wife, think about a settlement considering all the future development and your options
Thresiamma G. Mathew
Advocate, Mumbai
1515 Answers
134 Consultations

5.0 on 5.0

1. Yes, she is still your wife and has the right to stay in the house where you are staying,

2. I do not find any advantage derived by her  for her such act since if she had wanted to continue her married life with you, she should not have left your house,

3. Even if both of you are staying in the same house, you can ray for the decree of divorce from her,

4. Though the children are with you, you do not have the cusody order as she can again tke away your children,

5. Utilise this opportunity to be very close to your children to ensure that at the time of hearing of child custody petition, they can not be turored to  depose that they want to stay with their mother only.
Krishna Kishore Ganguly
Advocate, Kolkata
18535 Answers
449 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer