• Please advise

ME and wife got married in 2014 and immediately left for USA. We stayed there until Dec 2019. I got laid off from my job and had to come back to India with my wife and my two year old daughter. Obviously, we had to live my parents as a joint family. Within two months, my wife displayed aggressive behavior towards my parents, showed little interest in staying together, stayed most of the time, of those months, at her parents place which is 30 min away. One day, we had an heated argument over daily chores. she called her parents and left the house, along with my daughter. 
I feel she married me only because she thought I was going to live in the US. My wife has three sisters. Two are settled in Australia. Third sister got married because she thought her husband was going to live in UK. As soon as he decided he os going to live India with his mother, she left him with her new born daughter and is staying with her parents ever since. 
Same trend repeated when I came to india. I just want my daughter back. I live with my parents and they are well off and capable to taking care of her. However, I am unemployed as of now. 
Can I file for divorce and custody of my daughter? My daughter is an American citizen, FYI.
Asked 2 months ago in Family Law from Mumbai, Maharashtra
Religion: Hindu

1. you can file for the divorce on the grounds of mental cruelty, but it will take many years,

also once you file contested divorce she will surely file/claim

498a complaint 

Domestic Violence case

maintenance,

so be ready for them too,

2. if possible 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,

don't forget to draft an MOU before approaching Mutual Divorce, which is the most essential and important part of a Divorce case,

some basic points to keep in mind and put in writing through an MOU before filing the petition for mutual consent divorce are custody of kids, distribution of assets (movable/immovable), quash/withdraw of pending litigation if any, Maintenance (present/future), Alimony, mode and time of making the payment, streedhan, future litigation, etc.


as far as custody of the 2 yrs old daughter is concerned you can file a case of custody


FYI the mother usually gets custody of the minor child, under the age of five but in case the mother is careless or ignorant towards the child, the father can get it.

after five it can be given to any parent.

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

The most important factor is the BEST INTEREST OF THE CHILD.

 

Suneel Moudgil
Advocate, Haryana
2076 Answers
3 Consultations

4.7 on 5.0

  1. Yes. You must move family court for divorce and custody and guardianship of your child. 
  2. I willing to file the appropriate petitions and plead on them as your counsel. 
  3. However, i would first require an exhaustive consultation session with you. I'm based in Mumbai/Navi Mumbai just as you are; so it shouldn't be an issue for you to visit me for exhaustive consultation. ९८२०८९७८८४. (Nine eight two zero eight nine seven eight eight four)

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1280 Answers
4 Consultations

4.4 on 5.0

Hi

As per your description your daughter is minor and you will have to face a complicated process for the custody of your daughter but its possible.

As per law mother have first right over a female child.

Hire a good lawyer for the custody case,  chances are less.

Yes you can file divorce.  

Thanks 

Rahul Jatain
Advocate, Rohtak
2474 Answers
4 Consultations

4.9 on 5.0

You can file application seeking joint custody of your daughter 

 

seek interim visitation rights 

Ajay Sethi
Advocate, Mumbai
74617 Answers
4462 Consultations

5.0 on 5.0

1. If there are instances of mental cruelty you can file a suit for dissolution of marriage.

2.However getting custody of the child rests on different following.

3. In other words unless and until you can prove that welfare or safety of the child is severely at stake under the care of her mother.

4. However there is no problem in getting visitation rights of the child.

Devajyoti Barman
Advocate, Kolkata
19614 Answers
278 Consultations

5.0 on 5.0

This is just for you information rest you have to take call.

 

First we will talk about your daughter's education expenses which is going to take place in India. As you child is foreign citizen. Her educational fees will be very high as compared to Indian citizen child n all private and public or govt  school .

 

Now you decide whether still you want the daughter custody with you or just can have visitation rights.

 

I will just visitation rights will be better as of now, because further she might ask from yu maintenance and one time lump sum amount alimony.

 

If you want to go for custody of child that you can ask once child will be 5 years old. 

Ganesh Kadam
Advocate, Pune
9719 Answers
80 Consultations

4.9 on 5.0

It is fit case for divorce and custody of child. 

Kallol Majumdar
Advocate, Kolkata
2554 Answers
4 Consultations

5.0 on 5.0

Is your wife working ? 

2) if you are un employee and se is working she would not be entitled to any maintenance 

 

3) you can issue notice to wife to return to her matrimonial home

 

4) you can file petition for RCR if you want reconciliation 

Ajay Sethi
Advocate, Mumbai
74617 Answers
4462 Consultations

5.0 on 5.0

1. if your wife has independent source of income then she is not entitled to maintenance though you are liable for maintenance of the child.

2.  If both of you agree for mutual divorce then only issue of alimony can be resolved by way of payment of one time alimony.

3 Wife has no share in the property or assets of the husband.

Devajyoti Barman
Advocate, Kolkata
19614 Answers
278 Consultations

5.0 on 5.0

  1. Who told you to pay alimony? Plea don't take rubbish advice. It's she who deserted you, so the question of you paying alimony doesn't arise. 
  2. Rather, it's you, who stand to claim compensation for expenses you incurred during the course of your marriage and alimony. 
  3. So you must seek deligent, experienced counsels and not any tom dick or harry. I have already adbiced you to visit me

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1280 Answers
4 Consultations

4.4 on 5.0

The divorce is a different subject to that of the child custody.

You can file a child custody case even without filing the divorce case.

However if the situation is intolerable and there are n chances to save your marriage then you can file a contested divorce case on the grounds of cruelty.

You can file a child custody case but remember that the law says that the infant child shall be in the custody of its mother till it attains 5 years of age.

Hence you may get an interim relief f for visiting your child periodically on filing an application seeking visitation rights to visit your child.

 

T Kalaiselvan
Advocate, Vellore
64570 Answers
836 Consultations

5.0 on 5.0

As a legally wedded husband it becomes your duty to maintain your wife and the child, even though she has left your company on her own for the reasons she may rely upon.

You must prove that she voluntarily abandoned the matrimonial home with an intention to desert you.

The quantum of maintenance amount may be decided  by the court on the basis of her proofs and evidences she may submit to convince the court. 

T Kalaiselvan
Advocate, Vellore
64570 Answers
836 Consultations

5.0 on 5.0

“amount of MAINTENANCE/ALIMONY depends on various factors such as Living Standard, Financial Status, Properties held, assets, responsibilities, custody of children, etc

if she is earning and maintaining an equal standard of living like you, the alimony can be denied

Suneel Moudgil
Advocate, Haryana
2076 Answers
3 Consultations

4.7 on 5.0

Here we are not asking to give her alimony or maintenance, but keeping true facts of the case how it can turn its face impression in future. Your wife may ask alimony or maintenance from you. 

 

Here if you are not working and she is working then you can ask maintenance from her as per CrPC 125. because in its just said "Spouse" and not wife or husband. 

 

In this case what your wife will be demanding in the future and secondly we don't know that what is running in her mind.

Ganesh Kadam
Advocate, Pune
9719 Answers
80 Consultations

4.9 on 5.0

Hi

You know a husband is legally bound to maintain and bear every kind of expenses of his wife and children. 

Whether wife is earning or not. Husband's duty cannot be ruled out. 

So, pay some amount if it is mutually decided otherwise court will decide. 

Thanks 

Rahul Jatain
Advocate, Rohtak
2474 Answers
4 Consultations

4.9 on 5.0

Yes you should file for divorce on grounds of cruelty and desertion. She left you because you came back. She is not interested in either you or your family.

File for divorce and also file a habeas corpus petition in the high court for release of your daughter who is in the illegal custody of your wife.

Rahul Mishra
Advocate, Lucknow
8030 Answers
15 Consultations

5.0 on 5.0

She is not entitled to either maintenance or alimony if she is at fault. It is true. So proceed accordingly.

Rahul Mishra
Advocate, Lucknow
8030 Answers
15 Consultations

5.0 on 5.0

 See you can firstly file a complaint with police that wife left and is intimidating for false cases.

Second file a divorce on.ground of the cruelty. Also you can seek custody of your child and pending same seek visitation rights.

Also you can talk to your wife if she is ready for mutual counselling and coming back.

Shubham Jhajharia
Advocate, Ahmedabad
24355 Answers
96 Consultations

5.0 on 5.0

1. See if your wife is not earning court kay grant her maintenance , alimony also some.maintenance for daughter can be granted though you may contest same.

2. You can contest you wife is qualified and not working to seek money from you and also she deserted you.

Shubham Jhajharia
Advocate, Ahmedabad
24355 Answers
96 Consultations

5.0 on 5.0

You can object the said maintenance Petition filed against you. You can also contest other cases filed against you. Only for criminal cases and FIR seek anticipatory bail from court in advance

Prashant Nayak
Advocate, Mumbai
18700 Answers
34 Consultations

4.6 on 5.0

- As per Supreme court judgment , wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter. 

- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.

- Further, If wife is not supporting her husband for the enjoyment of life and denying relation , then the husband can get divorce after filing a divorce petition before the court on this ground.

- Hence, you can file a divorce suit against her on the above said ground as well.

-  As per the Supreme Court , Indian court is not having jurisdiction to settle the dispute of a foreign citizen child.

- Better to file a mutual divorce case after taking her consent and settle the matter of custody amicably.

- Further, under section 125 CrPC, an aggrieved wife can claim maintenance from her husband , if  she  is  not having sufficient income or source of income .

- Other side, A well qualified wife, who is having the earning capability & capacity , but desirous of remaining idle , is not entitled to claim any maintenance from her husband. 

Mohammed Shahzad
Advocate, Delhi
2600 Answers
35 Consultations

5.0 on 5.0

1. Yes you can file divorce case and case for custody of your child.

2. Divorce will be on ground of mental cruelty and

3. Custody case will be on ground of natural guardian ship but chance for winning the case are not good because upto age of 5 years custody of child should be given to mother and only in exceptional cases custody of child is given to father before age of 5 years. 

4. You have to pay maintenance to wife if she not capable to earn money for herself and only in case of adultery maintenance can be avoided.

Mohit Kapoor
Advocate, Rohtak
8007 Answers
2 Consultations

5.0 on 5.0

This is my response to you:

1. Did you try reconciliation or mediation?

2. If yes, then did you take help of marriage counselor?

3. You must explain the case in detail and all the aspects of your marriage;

4. You should opt for mutual consent divorce;

5. Also you will have to give maintenance allowance despite you being unemployed;

6. Consult a local lawyer, discuss full facts and take steps.

Gowaal Padavi
Advocate, Mumbai
1917 Answers
3 Consultations

5.0 on 5.0

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