• Child custody

I want to live separately from my husband with my 2.5 yrs old son. I am working woman, there are lots of misunderstanding between us. I never marriage again so divorce is not essential. He will allow me leave his home permanently but he not allow to keep my son with me. I can escape my son with me but my husband will try his level best to get the son's custody. What are the legal steps to protect myself from him as he will be dangerous if I escape from his home with my son.
Asked 6 years ago in Family Law
Religion: Hindu

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25 Answers

your son is only 2.5 years old 

 

2) welfare of child is paramount consideration 

 

3) you would get sole custody of your child 

Ajay Sethi
Advocate, Mumbai
99793 Answers
8147 Consultations

If you escape he may file false case against you.  It will be better if you claim legal custody from court. You can also file for maintenance under domestic violence Act for you and your child.  You can also file 125 crpc against him for maintenance. 

Prashant Nayak
Advocate, Mumbai
34526 Answers
249 Consultations

as the age of your son is only 2.5 years therefore you are perfectly entitled to his custody,

file a petition against your husband for judicial separation and stay separately along with your son,

your husband will surely claim custody of the kid by way of filing a case in this behalf but the Court will decide who is best suitable for the custody and the case will take a time of approx. 3-5 years for its disposal

 

various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc

 

Suneel Moudgil
Advocate, Panipat
2386 Answers
6 Consultations

See.you can file a police complaint against the husband and can leave his home also.you can mention of domestic violence and mental.cruelty and seek protection from him, in case he goes for custody case for child you can contest same on ground of age and welfare of the child.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

1. You are at liberty to stay at any place you wish to.

 

2. Mother is the natural guardian of her son till he is 5 years old. 

 

3. So, you will have his custody now as per law.

 

4. If you wish to stay away from your husband for whatever reason, you can take up a seperate accommodation and shift there with your son.

 

5. Simultaneously, you can file a child custody case before the Court.

 

6. The Court might allow visitation  right to your husband while giving custody of your son to you.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

1. You are thinking too much which does not have much scope for happening in reality.

2. You can leave your husband's home at any point with your child and start residing separately with your child.

3. Since the child is at his infant age your husband at best can get visitation rights while physical custody will remain with you only.

4. if you have no source of income then you can claim maintenance for you and your child . Else only your child would be entitled for maintenance. 

Devajyoti Barman
Advocate, Kolkata
23655 Answers
537 Consultations

You can stay separately without divorce although your husband can file a case under section 9 of the hindu marriage act for restitution of conjugal rights.you will have to claim custody of child through court.

 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

It will be legal battle. You must obtain court order for custody of your child

 Engage good lawyer for the same. Upto 5 years of child's age you will get the custody easily. But after that welfare of the child will be the paramount consideration for court to decide custody of the child.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

If you wish you can live separately without giving divorce. On your own if you separated from the marital life, he may file a divorce O.P. or Restitution of conjugal rights petition. 

In respect of child custody is concern, if your husband is not allow you to have the child on your custody and trying to take away from you then you can approach the court for child custody. The mother is the preferred custodial parent when the child is less than five years old and the opinion of a child will be considered if the child nine years old.  

Selva Perumal
Advocate, Chennai
339 Answers
36 Consultations

Child custody rest with mother only. Even law is clear mother cannot be separated from mother until child passes 5 years and than after also mother claim will prevail.

IF he forcefully takes the child, call the police.

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

If you escape there is no problem with that. He will file for custody and hence  a custody case will start and the court shall in all probability grant the custody to you as the child is small.

Regards 


File a domestic violence complaint and a criminal complaint against him for cruelty.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

No man or husband can separate you from your child being 2.5 years,by law all minor children will be with the mother under any circumstances, plus your husband and in laws can be taught a good lesson without filing any court case as of now, for which detailed history you will need to inform.

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

You can live separately and ask for son's custody as mother is best caretaker of her own child and in many citations court has grant custody to mother as child is minor.

Ganesh Kadam
Advocate, Pune
13008 Answers
267 Consultations

Your child shall remain in your custody till it attains 5 years of age and after that he may apply for child custody case.

If he is apprehended to trouble you or poses threat you may take the help of police and seek protection for your child and you.

You can leave the house if you do not want to live with him anymore

T Kalaiselvan
Advocate, Vellore
89994 Answers
2495 Consultations

See you are mother and you can leave the premises with the son , to safely leave you can file a complaint with the mahila police station against the huaband.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

Dot escape when the husband is in the house. Go away when he is not present. Afterwards if he does anything file a criminal complaint against him for domestic violence and physical abuse.

Regards 

Rahul Mishra
Advocate, Lucknow
14114 Answers
65 Consultations

when husband is not at home leave with your son .

Ajay Sethi
Advocate, Mumbai
99793 Answers
8147 Consultations

You can not do so legally. Your husband has equal right to his child. Without court order you can not take away your child from his father.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

For any forceful restrain you can call the police. 

Yogendra Singh Rajawat
Advocate, Jaipur
23082 Answers
31 Consultations

approach before women cell and file complaint against your husband and then you can leave your husband home along with your son. 

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

You can call police if he stops you. 

Prashant Nayak
Advocate, Mumbai
34526 Answers
249 Consultations

1. It may noit be that all the time he will be on guard to see whether you bare leaving his house with your son or not. fix up your alternate accommodation and then find out appropriatev time to leave his house with your son.

 

2. Immediately thereafter lodge a police complaint against your husband alleging that he is attempting to kidnap your son from your custody illegally though you are considered as your son's natural guardian seeking protection for you and your son.

Krishna Kishore Ganguly
Advocate, Kolkata
27703 Answers
726 Consultations

  1. As per the information mentioned in the present query, makes it clear that your husband will allow you to leave him and start living separately.
  2. But, he won’t allow you to take the child custody for sure, and I would also advice you to not to run away with your son, as otherwise he might file some false criminal cases on you.
  3. I would advice you to file an application for the custody of the child as keeping in consideration the age of the child, would definitely be given to you only (Mother is the most natural guardian of small children, specially).

Sanjay Baniwal
Advocate, South Delhi
5477 Answers
13 Consultations

Dear Client

You should Immediately hire an Advocate and File a Criminal Complaint to Judicial Magistrate Under Protection of Women from Domestic Violence act 2005 against your Husband to protect you from his abuse while leaving the house with son you can also get custody order of you son under this act.

The complaint would be Under section 12 of the act. for seeking relief under various sections of the act 

  • Section 18 Protection Orders
  • section 19 Residence orders
  • section 20 Monetary reliefs
  • section 21 custody orders
  • section 22 Compensation orders

but as you are capable of earning and take care of child you can only seek reliefs under section 18 and section 21.

and if you think he can use force while leaving the house you can make application in court to appoint a protection officer under section 8 of the act. who protects you while leaving the house.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

You may be stopped by them from taking your son away from their home, hence you may be prepared to that eventuality also by taking the assistance of police.

 

T Kalaiselvan
Advocate, Vellore
89994 Answers
2495 Consultations

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