Your sister can file for divorce on grounds of mental cruelty 

2) seek sole custody of her son 

3) seek interim maintenance and alimony from husband 

4) she can also file DV case seek protection order, alternative accommodation  maintenance and compensation for mental torture undergone by her 

Chicken file for divorce on grounds of cruelty. Filing for divorce would hamper chances going to UK. Also, the age of the child is below 5 years of age, then in all likelihood she would get the custody of the child. She should try to procure documentary evidence in order to prove the physical abuse by her husband or any in-law in court.

Alternatively, she can ask her husband to go for couples counseling to iron out the issues between them.

See if she donot want a divorce and also she is not interested in filing complaint against the emotional abuse then in that case they may opt for some marriage counselling if that helps. Alternatively if things does not change she has to separate file divorce and apply for custody of child, though he may contest same and it can take years to settle.

So best option is to settle is amicable and resolve dispute or ask him for a mutual divorce.

First of all mediation is required to save this marriage please note that a child below 5 years of age remains in the custody of mother sofa now the couple is living together and any sort of legal action has not been started so this provides the opportunity to start mediation and conciliation by family members there is no resolution and things can not getting improved then legal action so distant by sending legal notice and filing a complaint under section 125 in family court for maintenance of wife and child.

Letter on you may decide on filing divorce petition depending upon the situation

For time being don't go for divorce, instead try to concentrate on her UK job procedure plus let her son can be taken along with her there.

Once this is done then ask her to file Divorce case in India and you can take her legal representative.

HI,

if your sister facing physical and mental abuse she can head for divorce on the ground of cruelty. As the son is three years old so definitely will remain with your sister and husband will only get visiting rights. the husband would have to pay for the maintenance of the child. if they agree mutually for divorce then the divorce can be granted in six months otherwise your sister would have to contest which is a long process.

Ok.... This is the whole story you described..

Where is the question?

What exactly you want to ask

1. I am not sure why she is willing to continue with this marriage which brings only pain and agony for her.

2. Anyway if she indeed wants not to break this marriage then you better don't pressurise her in doing so.

3. There are certainly recourse to law against this but the same may ruin her marriage for good. 

4. You may though talk to him to resolve the differences amicably. 

Respected mam ....

In the situation which are mentioned by you in question it will not be possible for go divorce as divorce proceedings will take a long time in India and that will affect her further plan ....he will not take his son away at any dam cost only we need to prove that is child better future is with us so you need not to worry about the position of child ....at that end you are safe ....you just need to think about time ....I would like to advise you personally that go and make. Your future first there you will get the time to decide that what you have to do ...

Thank you

Dear Concern,

Please note - 

01. If you are living in a bad condition then you should make all endeavors to come out of it. Similarly if you know that your marriage is not working then you should not continue with that marriage and rather shall come out of it.

02. File a case of Divorce in against your husband to dissolve your marriage and also seek maintenance and custody of your child. In most likelihood you will be granted all of the above provided you prove your case by the way of evidence. Courts are generally inclined to give custody of the child to the mother so I don't think that it should be different in your case.

03. As far as your shifting to UK is concerned then that is not going to be affected by the civil suits. Had there been a criminal case pending in against you or initiated by you for some or the other reason then for sure your application to move to UK would have been rejected by the embassy.  

However, it is advisable to contest the case and to win it in your favour before moving to UK as legal processes in UK is much costly than that of India and it will be extremely difficult for you to get your rights awarded or restored from the UK courts when your entire case is of India. 

My best wishes to you. 

First custody of child stay with mother, so no worry. And let her so to UK and if husband is also going with her, she can later disown him in UK. UK law is strict, if he misbehaved and assaulted her, complain to police. Immediate action.

Or somehow manage to alone with with kid than refuse for dependent Visa to him. Will not able to go UK at least on her basis.

To take child with her, father permission is necessary. Other than that if she will apply for divorce and file case of DV, no problem to her Visa process. 

Wife dose not require husband permission for Visa process.

1. Your sister should file divorce on ground of mental and physical cruelty by husband and mother in law. 

2. No need to worry about custody of child as upto five years of child age preference for custody is given mother. 

3. Your sister can also five case for legal custody of her child and claim interim relief of permission to take her child to UK along with her.

- The easiest & shortest way to get decree of divorce from the court is Mutual divorce, i.e she should take the consent of her husband to file a mutual divorce petition. 

- If, her  husband not ready for mutual divorce then she should file a Divorce petition on the ground of cruelty.

- However, you should know that your sister is having the following right and claims from her husband. 

1. As per law, A wife has the right to claim decent living standards and basic comforts of life from her husband. Hence for claiming the maintenance for her & child, she should file a petition under section 125 CrPc.

- Her husband is under legal obligation to provide the same to her at any cost, even he is working or not. 

2. Law entitles wives a basic right to reside in the matrimonial/ home, whether the house owned by her husband or his parents, a rented property or officially provided to him. 

- Hence, for claiming her residential right, medical expenses etc, and also for teaching a lesson to the family members of her husband, who subjected her torture & harassment, she should file a petition under the provisions of Domestic Violence Act.

3. As per the Supreme Court, A wife has complete ownership rights over all her Streedhan, the gifts and money given to her before and after marriage. The denial of Streedhan to the wife makes the husband and in-laws liable for criminal charges. 

- And further, if the husband or his family members subjected a woman to cruelty for the dowry demand, then they can be booked under Section 498-A.

- Your sister should lodge a written complaint against her husband & his family members, in the Women cell/Mahila Police, after mentioning all the details of torture & harassment. 

- The women cell firstly will try to reconcile between them, otherwise, they will lodge an FIR against all the person, who subjected your sister cruelty. 

- Further, if you don’t want to create problems for your sister’s husband, and proceed for divorce, then you can get divorce decree within a short period of time, after filing mutual divorce petition. 

- Further, a mother who is even a housewife can gain custody of the child and the father will be asked to provide child support.

- The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

- Hence, being mother of baby child, she is the only & fit to get full custody legally, after filing a case for custoly.

- Since, she is trying to go abroad , hence better settle the dispute amicably or take her husbands consent for mutual divorce.

You have given  a gist of what has happened between them however you have not mentioned your query here.

Your sister should take a bold step.

The matrimonial dispute will not affect her abroad program.

The child shall remain in mother's custody till it attains 5 years of age as per law, hence she should not be worried on that aspect too.

If it is found that it may not be possible for her to continue this married life with him anymore then she can decide about filing contested divorce case on the grounds of cruelty.

You may discuss with a local advocate about the modalities and the after effects by taking a decision to file divorce case 

But what can be done legally if you sister doesnt want to take legal steps. There is no middleway without approaching court to stop this harassment. Otherwise she needs to tolerate this for life. 

Dear Sir,

Out of many options available to you, one would to convince your sister's husband to just allow for the job first and then settle other things later. In my opinion, indulgence in court case will take time and it will not solve your problem instantly. Also, if your sister proceeds to UK, she may have some money and financial security in her life later on. So, it is better to get settled in UK in job and then ask for the settlement of other family issues.  

1. Your sister has to decide what she wants.

2. If she does not want to end the marriage then she may file DV case under Section 12 of DV Act, 2005 to seek protection order against her husband to stop all acts of domestic violence against her.

3. She is free to file petition for dissolution of marriage on the ground of cruelty.

4. If her son is taken away from her then she can seek the custody of child by filing a petition under Guardians and Wards Act.

Hello,

File a case for divorce and also a case for getting the custody of your child. Court generally prefers to give custody to mother's except in certain cases .

Regards

Dear Querist

Your sister will have to choose one option, either divorce or live with him, if she decides divorce then all other things are immaterial as the child is below 5 years so nobody can get the child custody except your sister.

Feel Free to Call

Dear Sir,

After going to abroad it is very difficult to get divorce. However first let your decide whether to take divorce or not. Child custody will be in favor of your sister nothing to worry. You need discussion if you wish particular solution to resolve your issue. You can get my mobile number from the administrators of this website. The different modes of divorce and concept of child custody are as follows.

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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.

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The grounds of contested divorce are as follows:

• 
  Cruelty:Cruelty may be physical, emotional or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining a divorce under the divorce law due to cruelty by the spouse.
• 
  Adultery: In India, if a man commits adultery (i.e. has consensual sexual intercourse outside of marriage) then other than being governed by divorce laws he can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery. It is provided as a ground of divorce to both under divorce laws.
• 
  Desertion: One spouse deserting the other without reasonable cause (cruelty, for example) is the ground for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu divorce laws, the desertion should have lasted at least two continuous years.
• 
  Conversion:Divorce can be sought by a spouse if the other spouse converts to another religion as per divorce laws in India. This reason does not require any time to have passed before a divorce can be filed.
• 
  Mental Disorder:If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought under the Hindu divorce laws. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
• 
  Communicable Disease:If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhoea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
• 
  Renunciation of the World:If the spouse renounces his/her married life and opts for sannyasa, the aggrieved spouse may obtain a divorce under Hindu divorce laws.
• 
  Presumption of Death:If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have reasonably heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce under the Indian divorce law.

Sir,

It will take one year for Mutual Consent divorce. It may take one or more years to take contested divorce. For getting divorce, you have to move a petition in the family court where your sister is residing from the last 6 months.

If she’s stressed in this marriage, and unable to take it any more; it’s better she come out of it. There’s no point of continuing it, in case she is unable to bear the emotional toll out of it. She should consult a local lawyers and also discuss as to how she can retain the child’s custody 

If she apprehends backlash from community / society, she has to bear  all the humiliation / pain inflicted by her husband / Mother-in-law.

If she really wants to fight for her rights / justice, she can file for divorce on the grounds of cruelty.

She can file application for custody of child, since child is 3 years old, most probably custody will be given to her with visitation rights to father.

She can also file applications under Domestic Violence Act viz., right to residence in shared household, protection orders, residence orders, custody orders, compensation orders and seek interim orders against her husband, apart from the above, she can also file for maintenance (if her income is substantially less when compared to her husband's income).

Best option is to wait without precipitating the matters till she goes to UK, there things may change for GOOD !!

You should wait for her to go to UK. After that don't sponsor him there. He will remain in India. Then she may file a domestic violence case against him in India through her siblings or parents.

Better u seek the detailed consultation by disclosing complete details in this case, so that exactly can be suggested to do. 

Dear querist, 

in case the goal for you is to get the divorce for your sister, then the custody of the child is not the issue to be worried about. what can be done in this situation is that a divorce petition can be filed and along-with the divorce petition an application for the custody of the minor child will be made which will possibly be decided in the favor of your sister. Apart from that, the value in public and neighborhood can never be  considered for a divorce matter as it a right affecting the relationship between two people and not the world. 

You can contact me for consultation, if any. 

Regards, 

Yuganshu sharma 

Delhi High Court

Dear Madam,

There are several enactments in favor of married women.  You must show heat of the litigation to your husband and mother in law otherwise you cannot sustain in such unbearable atmosphere.  You can file Domestic Violence case.

Further, she can also file an application under Section 12 of Domestic Violence Act, thereby seeking compensation for mental harassment. In case she requires residence, then she can file application under Section 19 of the said Act for seeking right to residence. In addition to aforesaid,  in case she desires maintenance then she can file a case under Section 125 Cr.P.C., thereby seeking maintenance.

file Domestic Violence case seeking following reliefs:

PRAYER

                HENCE THE APPLICANT HUMBLY PRAYS

1. to take cognizance for the offence punishable u/s 498A IPC and punish Respondent1 to 3 as per law and extend police protection to the deponent,
2. Pass orders u/s 19, based upon S.17, granting separate residence for herself and her three children at a monthly rent of Rs. xxxxx/- and advance of Rs. xxxxxx/-.
3. Pass orders u/s 18, in totality against Respondent1 to 3,
4. Pass orders u/s 20(i) granting Rs.xxxx/- per month as maintenance for applicant and maintenance at the rate of Rs. xxxxx/- each per month to her three children.
5. Pass orders granting Rs. xxxxx0/- for setting up house hold requirements, in granted residence, to make it livable, as the applicant cannot return to the house of Respondent1 as he is residing in the house of respondent No. 3, which is legally prohibited,
6. Pass orders granting litigation expenses of Rs.xxxxx/- as the applicant made to wander from pillar to post for getting legal aid to attend the Hon’ble Court, whereas, the Respondent1 falsely filed Divorce Petition.
7. The applicant also filed interim application supported by affidavit u/s 23(1) and (2) of D.V.Act,
8. That any other order/s, this Hon’ble Court deems fit, to meet the ends of justice, be passed.