I stay in bangalore. Ours is 4.5 years of marriage. My wife went to her brother's place in kolkata in the month of sep'2018 , even i also went with her and my small 4 months kid from bangalore. After 2 months , she was supposed to go to my home town in tripura(north east) , but did not . With this incident me and my family got surprised and upset ,however after continuous call and request he agreed to come to my home town( Where a small function took place , we call this 'rice -ceremony' for my small kid). this is in the month of Mid nov'2018 .I too came from bangalore to Tripura to attend my kid's function. In mean time , her elder brother's marriage got fixed in the 1st of dec'2018. She urged her wish to attend the function, my family cordially allowed her to go to kolkata again . I booked the ticket and also booked the return ticket on 07th december'2019 . During her stay at my home town she was very nice and normal. On 7th december '2018 , she did not come back. After calling her hundred times , she did not pick the call, made few efforts to call her elder brother as well , but no reply came . In the evening she picked my call and replied that she will not come back and demanded that if i can manage a job in kolkata then only she will stay with me . In her tone, i find clear sign of detest and cruelty . I clearly understood that , after getting my kid, her mother and brother both brainwashed her and made her completely against me. For next 3 months , every day i tried to call her , but she never responded to my calls. One day she replied in whatsapp that she need money everymonth and despite my repeated request , she clearly told that she will never come back. Thereafter requested many times her family members to do a reconciliation, but all efforts went to vein. Now, my life has got distorted . I can not stay away from my baby. I spoken with few lawyers , few were very blunt , saying that , "If some one does not want to come back, you can not force" . Also , in india , being mother of small kid ,the Law is also lineal towards woman(that i understood) they suggested to go for conjugal right which will take time ,probably few years and also if she does not respond to that plea , i can not force her. Note , my wife is from Bangladesh, I used to renew her stay visa every year . This is her 5th year (final) Though after sending her repeated messages /informing her brothers about the visa expire date , they did not respond. Now ,Her visa expired 22nd april'2019. what i understood that she does not care about visa renewal and ready to stay without visa , but she is unwilling to come back. I want my baby and family back to me .Her elders are doing injustice to her and to my kid as well. From my experience what i understood that , woman has more right and power to do cruelties and there are no immediate redressal for a father and husband in our country. Kindly suggest.what legal step i should take?
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Just file a case of restitution of conjugal rights with prayer of both staying together, no need to separately do custody of child case, things will wage into war then, do file it in kolkata, or else wife will file transfer petition, double expense for you, play safe,
There are ways for which you need good homework to do, if you need to make your wife suffer in court.
You can issue wife legal notice to return to her matrimonial house
2) if she refuses file petition for RCR seek joint custody of your child
3) if wife does not contest you would get exparte decree
4) however even if you get decree you cannot force your wife to stay with you
As per HMG Act section 6 you can get custody of children after their age 5 years. Meanwhile you can get visitation charges from court.
File for Restitution of Conjugal Rights and for custody of your child. In normal practice, custody of a child below 5 years of age will remain with the mother. A child below 5 years of age cannot live without its mother. Court cannot force an unwilling person to compulsorily stay united in a marital relationship. In case, after obtaining favourable RCR order in your favour and still your wife doesn't join you, then that refusal of her's shall be a strong ground for you to obtain divorce. In such a case, there will be no obligation from your side to give alimony/maintenance to your wife, since she voluntarily abandoned to lead a marital life with you. However, you will have to give maintenance to your child till the child attains majority.
if you want to remain in the matrimonial relationship, then,
try to settle the matter amicably with your wife involving elders/relatives/friends etc, take her back, and, start afresh, if failed, file Restitution of conjugal rights petition in the Court, (that is what many other lawyers advised you)
and,
if you want to terminate the matrimonial knot, then, (not advised, keeping in view the kid)
try to settle the matter amicably with your wife involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,
if failed, you have two options,
one option is to,
file contested divorce on the grounds of mental cruelty, but it will take around 4-6 years,
also once you file contested divorce she will surely file/claim
498a complaint
Domestic Violence case
maintenance,
so be ready for them too,
and,
the second option is to
file Restitution of conjugal rights petition in the Court, to show your bonafide intentions to save the matrimonial tie, however, you can withdraw the same any time,
RCR will work as a safeguard to 498a, maintenance, DV etc
you can also file a case of taking custody of your kid but chances are low in your favor being the child is too small (age)
First of all you know father is the natural guardian of minor child. However upto 5 years of age of any child mother is preferred for custody of child. After that welfare of child becomes the paramount consideration for deciding custody of child.
So if you concern about your child you can easily get custody of your child after 5 years of age of the child.
Remidies for other issues are
Judicial separation
Restitution of conjugal rights
Divorce
You can choose any one which suits your present circumstances best.
You can file contested divorce in family court if your wife is not ready for mutual consent divorce. It depends on you whether you want to continue or quit the relationship
See if she is unwilling as suggested you have to file a RCR before the family court seeking restitution and for custody of baby a custody petition can be filed seeking interim custody and visitation rights.
See there cannot be any immediate step in marital discords it takes time and you have to either settle mutually or court procedure takes time.
The wife has been brainwashed into not going back. If the relationship between you two was normal then I dont understand why she did this.
Anyways if you want your child back file a divorce petition in the family court.
File a complaint also with the RPOthat she is a Bangladeshi and is living illegally in India. These are harsh measures but she deserves this. The court will never give her the custody as she is not an Indian. You have a strong case. Dont talk with pessimistic lawyers.
Regards
Dear Sir,
You have many options and you have to give mild shock to her since she is residing without Visa. Further you can claim her and the child legally and an interim order will be passed for her stay with you in Bengaluru. You need not worry so much.
Hello,
1) There is no instant solution as far as legal steps are concerned. You can file for restitution of conjugal rights and file am interim application for child visitation/ access rights.
2) Though it is a general perception that the RCR petition takes long and even if ordered in your favour, it is not enforceable, the fact is that is the legal remedy you have to adopt. Firstly this will pave way for your meeting the child and getting access rights. Secondly the court will become a powerful platform for you to interact with your wife through an independent mediator.
3) Getting to court will also help you with arriving at a considered decision about the future of your marriage.
You can file section 9 RCR if she not contest then court may award you exparte RCR. execute this RCR decree on her and if she does not return to cohabit with you within one year from the date of awarding of the said decree then you can file a petition u/s 13(1-A)(ii) of the H.M.Act, 1956 seeking divorce on such grounds of her not honoring the decree.
as per guardian and ward act, up to 7 year mother is considered as natural guardian of the child, after that if the child is male then it is easy for the father to get his custody, but in female child's case generally custody goes to the mother, but if the mother is unable to take care of the child due to any reason or the mother is character less having some affair only then father can get the custody.
Can i apply hebeas corpus against her brother and family with whom my wife and family staying now ?
Habeas corpus is only applcable if someone is forcibly not produced from custody. In this case I guess it's not forcible but voluntary
Dear Client
This is right that you cannot force anyone to stay with you but at the same time law gives you a chance to try for saving your married life and that is through Petition of Restitution of conjugal rights Under Section 9 Hindu Marriage Act for getting court order for her to join you as your wife.
But as she is already brainwashed by her family you have to try some hard steps to make her come on right track. For that you have to go to her brother house where she is residing and talk to her face to face.
And if her visa is expired you can file a complaint against her for staying illegally in India without visa also you can file a petition for custody of your child as she will be termed as foreigner she can't take child of Indian Nationality to bangladesh this can make your case strong.
And you can lodge a police complaint against her brother and mother for harbouring a bangladeshi citizen without visa and also having illegal custody of your child.
Hi Mohit, as my baby is too young and solely mother dependent , how can i get baby's custody. will court give me his custody in this situation? I get to know about 'Restitution of Conjugal Right' which seems will take much time and also , seems Law also can not force her to come back. To make the process Fast tracked , can i optain 'hebeas corpus ' plea against her brother , under whom shelter she is staying illegally , though she is staying with her concent.Kindly suggest .
You can't apply habeas corpus writ in this case. You can max get visitation rights for your baby from court if applied
You would not get some custody of your child
court would award you visitation rights
dont file RCR
you can file habeas corpus petition
You can file habeas corpus petition if you so desire but if wife saying she is staying with her own wish court would not force her to stay with you
Habeas corpus is non maintainable in this case.
See court is most likely to give visitation rights to you in this situation..
See restitution you can try , court may also grant you mediation you can sit and sort out differences .
Divorce may not be granted as there are no strict proof of cruelty and habeas corups is also not maintainable as she is not illegally detained.
A habeas corpus petition can be filed but you have to show that her brother has confined his sister and her child.
Regards
1. Unless your wife decides voluntarily to return you cannot get her back. No court can force your wife to be back with you.
2. Surely you can file a petition for restitution of conjugal rights, but the fundamental purpose behind filing of this petition is not to get the wife back.
3. You are free though to file a petition for child custody under the Guardians and Wards Act to seek the custody of your child. Since the kid is only 4.5 months old it is most unlikely that court will grant the custody to you, but you will get visitation rights.
1. Habeas Corpus is maintainable only when there is illegal detention of a person.
2. You may file a habeas corpus also but if your wife on appearance/production before the court states that she has been residing in her paternal home with her free consent then High Court will dismiss your petition, but nowadays even in Habeas Corpus petitions the High Courts are sending the parties to mediation. So it may work.
Writ of habeas corpus is filed against a person under whose authority any person is deained to produce that person in court.
No you will not get the custody of the child but you may get the visitation rights of the child
habeas corpus can be filed by you but if the wife appears before the court and says that she has gobe out of her own will then habeas corpus will be of no use
Habeas corpus is effective in case of illegal custody
Her visa got expired on 22nd of April'2019 as she did not return. Now she is staying without any national permit. Where she is staying now is her brother's address. not her actual parents address which is in Bangladesh as documented in passport of her. Now, she is staying with her concent but primarily without husband's concent who is by law her legal guardian now. And intended 'hebeas corpus' to be against her brother . How law will react here ?
Please understand that habeas corpus is filed against a a person who has illegal custody of some one.
brother of your wife is not having illegal custody of anyone.
If she is living there after expiry of her visa then she is living illegally and not that the brother has kept her illegally.
Please try and understand the hairline difference
Regards
No you can not file a writ for hebeas corpus. Your wife is not kept in confinement by somebody else. She can freely move around. It will be simply rejected by court as this writ is not applicable in your case.
Habeas corpus petition would be to direct police to trace your missing wife
2) if she is staying with your brother of her own free will then you cannot force her to return to her matrimonial house
See since her visa is expired the legal proceedings against her can be initiated against her by the appropriate authority but for habeas corpus she need to be in her brothers illegal detention if she on her free will residing there then writ is non-maintainable.
the habeous corpus is not maintainable under the present circumstances,
she is leaving with her consent nor kept forcefully
The habeas corpus petition should be filed as she doesn't have the permit to stay in India and she is illegally staying here. The court shall order her to give the child to you.
Regards
Yes you can file a writ petition of habeas corpus for production of your wife and child in court but once in she gives statement in High court that she is living with brother with her consent then you can't do any thing.
But as her visa is expired in April and she is currently living in India without visa then you can put pressure on her by threatening her for police complaint of illegal immigration in Country. May be by this pressure she returns to you and once she got back make your ties strong with her.
How can you get habeas corpus for her brother and on what ground. Neither he has kept your wife forcibly or illegally in his custody. Nor he is the custodian of your wife. You wife is staying there with her consent. You at most complaint to FRRO office
1. The High Court may direct the police to produce the wife and kids before it.
2. Once the wife is produced it all boils down to what she states before the HC.
As rightly observed and suggested by many lawyers , she cannot be forced to live with you against her willingness.
The child also has to complete five years of age so that the court can pass the orders at its discretion based on the merits of the child custody case..
HCP or haebus corpus petition can be filed only if you do not know the details or whereabouts of the child, hence it may not maintainable.
You may not be able to file a HCP case against her brothers, neither she is bound nor Murali is a competent present or your anni towards the refund of security deposit amount