Hi, My son is 4 yrs old (will be 5 in this Sep). I have applied for divorce 1 yr before on the grounds of dissertation nearing first trail now. Me and my wife are separated for 4 yrs now. My son is with me from birth and he is not aware anything about his mother. We are based outside of India. Will there be any chance Indian law (blindly women supportive i think) orders to take my son to his mom ( as he is not yet 5 as of today)? How do i prove about dissertation in court to get divorce? We don't have any contact for more than 2 yrs. Please guide me. Thanks.
Hello,
you statement showing that you are not living together will be sufficient to show thag you are not living together. If the wife is living in India then it becomes even easier to prove.
welfare of the child is of paramount importance in deciding the custody. No blanket order will be passed.
has she filed a case of custody?
Regards
Wife refusing to stay with husband for continuous period of 2 years amounts to desertion and is ground for divorce
2) you would be awarded custody of child as he is staying with you for last so many years
3) welfare of child is paramount consideration
The Supreme Court recent judgement held that custody of children below 5 years of age should generally go to the mother for the welfare of the child is of utmost importance.
You would have to prove that she had deserted your companionship years back by way of various forms of evidence such as text messages, pictures of your son's birthdays and other major events where she cannot be seen in any pictures, pictures from her social media showing her at different places at all times as well as for current place of residence as stated on her social media platforms, statements from people who had been associated with you both like family members neighbours etc, call recordings.
Instances which would show her to be a negligent woman unfit to take care of the child would also very very beneficial for you to get the custody of your child whether it is pre or post pregnancy event of negligence on her part.
Regards.
No, it is not like that court will give your son to your wife.
Yes but if there was a daughter in place of son then she would have been given to mother.
Cross examination of your wife will prove desertion
Thanks
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.
The mother usually gets custody of the minor child, under the age of five. but after five it can be given to any parent.
if the child is under 5, Usually, the mother gets custody, but in case the mother is careless or ignorant towards the child, the father can get it.
Hello,
Any proof which shows that you both are not together since years can help you in this case.
Regards
1. IF you can documentarily prove that Wife deserted & separated since four years, and further prove that Wife did not bother about Child, in anyway, whatsoever and further prove that Wife is somehow incapable of managing child or is adulterous, THEN you have a strong change of Child Custody.
2. Further IF you are based in Singapore, and IF Wife is in India since last 4 years OR child birth, the Passport entries itself would documentarily prove the separation of 4 odd years. Try to procure her Indian' Job records, Bank details and other details
3. There are other factor in play, but all this would depend on available documentary evidences and witnesses.
Dear Sir,
As per your input, the mother of your child can be termed as one of the most cruel mother because she left the child in the tender age when she was required very much for him. This will be applicable to all the cases and all the places (India or abroad) and it will be your one of the various defences when she applies for child custody. As regards to desertion, you may have the proof of your communications of past time when she left and you attempted that she should return to your home. Apart from this, there will be your relatives, friends in terms of witnesses.
Parents have equal custody right. Whenever she will apply for child custody, relief will grant by court but not necessary that court will grant her full custody of child.
Couple living separate in difference counties, easily can prove in court but the actual test who deserted whome ?
You have to prove that you were continuously trying for reconciliation from 4 years and she refused to stay and deserted willingly.
No order will be passed, passing on your son's custody to your wife without hearing your side.
It appears that you are better suited to provide a suitable atmosphere for the upbringing of your child, and hence generally the court will not disturb the child's custody which is currently with you.
You may give your testimony in the Court as an evidence.
You need for prove that she left you. Divorce is easy but custody may go to her as she is mother and your child is very young. You may get visitation rights
Are you both residing in Singapore?
If so file a case in Singapore.
Even if she is India file a case in Singapore to get custody.
Regards
G.Rajaganapathy
High Court of Madras
You have applied for divorce on the grounds of desertion besides other reasons.
So you have made a pleadings in the divorce petition about living separately away from each other from the period as mentioned in the petition.
If you have mentioned in yor petition that you both are living separately for two years of more than that is the proof for desertion.
The child custody is not automatic in divorce case.
If the child is in your custody then she only has to apply for child custody, you can challenge the same at that time.
Dear Sir,
You may stay coolly. Nothing to worry. Indian laws are very sensitive and judges never give any relief to a litigant who sleep over her rights and her conduct will be taken into consideration. In this back ground it is not so easy for your wife to get the child at this distance time. Secondly welfare of the child is more important. Please see the following.
==============================================================
Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
1. Do nof worry as your wife is not likely to apply for custody of the child.
2. However even if your wife indeed claims the custody you can rest assured as if the welfare and safety of the is properly protected your child will remain with you.
3. If your wife without a reasonable excuse left you and thereafter refused to come back then desertion can be proved bh witnesses of your family members and friends.
Dear Querist
if Divorce case is pending before the Family Court in India then she may file an application under section 26 of Hindu Marriage Act-1955 for child custody but as the son is in your custody the court will not pass an order for custody to her till the final judgment but the court may pass an interim order for visitation right as she is the mother of the child.
Continuous desertion for two years will have to be proved before the court, you will have to prove it “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such person.
In Bhagirathabaiv.Bapurao Devrao it was held that in the Explanation towards the end of Section 13(1) the expression “desertion” with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the marriage either without a reasonable reason or against the consent or wish of the other spouse party to the marriage and includes the willfully neglecting behavior by that other party to the marriage towards the petitioner.
The Supreme Court in Lachman v. Meena interpreted that desertion in its very essence means the intentional permanent abandonment by one spouse of the other without that other’s consent and without reasonable or just cause or justification. It was also held to include willful neglect of one of the parties towards the other in a marriage.
Feel Free to Call
See the child is staying with you from his birth and last 4 years his ordinary residence is with you so in case your wife file for custody you can contest same. Court will not directly grant custody to her though court may grant visitation.
See if your wife voluntarily left you then in that case it is desertion and if the period for same is more then 2 years court may grant divorce on that ground.
You may produce circumstantial evidence before the court to prove the desertion.
The offence of desertion must be proved beyond any reasonable doubt and a rule of prudence the evidence of the petitioner shall be corroborated. It is now well settled that the matrimonial court has to look at the entire conspectus of the family life and if one side by his or her words or conduct compels the other side to leave the matrimonial home, the former would be guilty of desertion, though it is the latter who is seemingly separated from the other.But where the husband does not take any steps to effect reconciliation, he is not guilty of constructive desertion.
In case of desertion, the burden of proof lies upon the petitioner. So you have to prove the four essential conditions namely,
(1) the factum of separation;
(2) animus deserendi; (The intention to bring cohabitation permanently to an. Two elements must be present on the side of the deserted spouse: absence of consent, absence of conduct reasonably causing the deserting spouse to form his intention to bring cohabitation to an end)
(3) absence of his or her consent
(4) absence of his/her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home.
The child is already in you custody. Then why should you again file a custody petition. The resent judgements of supreme court adverse against you, that is custody of a child less than five years of age should ordinarily be with the mother
Dear Sir,
the custody of the child is considered based on the age of the concerned child and the behavioral character of the parents towards the child.
1. No Indian law is not always supportive to women it also considers the merits of the case.
2. Chances for giving custody of child to his mother are very low in your case as court will definitely ask then question that where were mother of child from almost 5 years when child needs her the most.
3. This is a very strong proof against your wife that she even left her son when he was infant and he doesn't even recognize his mother.
1. The question is not of blind support. Court has to decide the dispute of child custody on the touchstone of welfare of child. A child needs both his parents.
2. Even if the court were to countenance the plea of desertion and decree the divorce petition in your favour to dissolve the marriage, it cannot have any bearing on the petition for child custody which has to be decided on its own parameters.
3. Mother who is not having the custody of child is entitled to visitation rights.
Desertion has to be proved. If she has deserted you intentionally and not because of your fault you will get divorce easily in grounds of cruelty and desertion. She hasn't demanded her her child and hence she has to prove that she was concerned about it and did something. Otherwise she won't get custody.
in child custody cases the court usually looks at the welfare of the child
welfare of the child is the paramount duty of the court which it enjoins upon itself in child custody cases
if your son has always been with you and wants to continue with you then the court will reject the wife's contention for custody
in your case the child is of 5 years and thus court can also speak to the child and ascertain his true intention
- Under the Hindu Marriage Act, Separation is a ground of Divorce, if the husband and wife have been living separately for more than two years at the time of filing petition.
- Further, if the separation is more than 2 years period, then even without a reason, is a ground for a Divorce decree.
- Since, you have been separated for 2 years from her , then you are entitled to get divorce as per law.
- You should file a divorce petition before the court for getting the Divorce legally, on the ground of long period separation & Cruelty.
- Even, if, your wife wanted to live, the court will grant divorce, because there is no relation as husband & wife since long period
- The custody of a child depends upon the following aspects:
- Hence for getting the custody of the son , you will have to prove the financial incapacity of his mother which shall in future affect the upbringing of the child and also prove your financial capability to take good care of the child.
- Further, you will have to prove that the background of the mother has been in dark and that if the child will stay with her , then it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth.
1. Mother is considered as the natural guardian of her child till his/her 5 years of age as per India law.
2. She can file an application seeking custody of her child before the appropriate Indian Court which you shall have to contest fittingly.
3. However, the welfare of the child will be considered as prime consideration while awarding custody of the child to either of the parties.
4. You can prove her desertion from her passport if she has left your Country before 4 years.
5. Ordinarily husband's lodge a police complaint informing the police that his wife has left his house to keep things in record.
you will have to file a Petition under Guardian and wards act before the jurisdictional Family Court and later on the Court will decide upon the visitation rights and the custody of the child
If a spouse leaves the other without any reason, the aggrieved spouse is entitled to file for divorce under the ground of Desertion which will be for a continuous period of two years.
Your case is one of peculiar cases, since birth the child is with you, on filing for custody of child, there are chances of you getting the custody of your son.
Going by the contents of your post, even if the court inquires with the child about his wish to stay with mother / father, his interest will also be taken into consideration.
In all probability the welfare and well-being of the child is of paramount importance rather than the egos of either of the spouse.
Ans: How did she leave you all, all of a sudden??
firstly, establish that fact and since the day she has left, she has not bothered to even look back for her minor son and hence if a woman who has not looked behind for her minor son, can never be interested to look after him even if the court grants her the custody. You may take this defence.
