• Does become primary caregiver of child overriding wife amounts to domestic violence

Though living in the same house, I do not have any conjugal or domestic relationhip with my wife since last few yaers. I want to become primary caregiver for my child who is 8 years old. Primarily because, hoping this is going to provide me with better chances of gaining custody of my child. His mother does not turn any opportunity down to tutor my son to stay away from me. However I don't at all mind him sharing equal space with his mother too. But that does not happen. I want to become primary caregiver (e.g. cook for him, feed him, help him in his studies solely); which I do occasionally now. But for that I have to override his mother. Does it amount to domestic violence or may attract 498A? Please let me know. Any other suggestion is also welcome. Thanks.
Asked 4 years ago in Family Law
Religion: Hindu

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21 Answers

You can help your child in his studies 

 

2) you can engage a cook for cooking for the family 

 

3) visit family counsellor to resolve your differences 

 

4) welfare of child is paramount consideration 

 

5) it does not amount to domestic violence 

 

6) you cannot  take unilateral decisions for child without mother consent

Ajay Sethi
Advocate, Mumbai
94689 Answers
7526 Consultations

5.0 on 5.0

Respected sir...

That is your right and care for your child that does not amount to domestic violence or cruelty ...if she have to falsely implicate you in fake case she have to take another reason ...this will not work for her ...

 

 

 

Thank you

Dinesh Sharawat
Advocate, Delhi
1263 Answers
12 Consultations

4.9 on 5.0

In India joint parenting has got its  footing and importance in welfare of child and has legal sanction though uncodified by any statue but by common law.

A continuous wilful deviation from such established practise  leading to single parenting and thereby  depriving the other spouse from parenting,   may,  based of particular facts and circumstances, be framed into the ambit of emotional abuse to the affected spouse particularly a female spouse. This is with reference to DV act. 

So as to 498A,  such activities shall not constitute any offense  under that section. 

 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

Hi

Look there is no legal provision available for the so called POST "primary caregiver", this has to done at your own, you cannot miss the opportunity to do the chores for your child before his mother does so, anyway you can file a permanent custody petition under GWA and just prove that you alone can take care of your child without your wife. That would be sufficient to take the custody.

Thanks

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

1. There is no law which entities you to become ' primary ' care giver if the child. However you may take heart that there is no law either which proscribe you from doing this either. 

2. You being the natural guardian of the child has every right to prepare for the child or give all such things which you want as well. 

3. These actions by ni means can come under the purview of domestic violence under PWDV ACT or cruelty under section 498A IPC. 

Devajyoti Barman
Advocate, Kolkata
22815 Answers
488 Consultations

5.0 on 5.0

In case there is cruelty with wife that is shouting hitting or abusing or any other kind of cruelty then only it attract penal provision otherwise you being father of the child can freely attend to your child and take care of him/her.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

You are living together but not as a husband and wife. You may file a case for divorce on grounds of cruelty and desertion. Desertion here is mental that is important. Then only can you have the custody of the child once you file a separate case for custody.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

This dose not comes under the definition of DV/498a.

Since both are living under same roof, so claiming absolute right over child not possible neither court will grant such releif.

Manage this at home only without any force on wife.

Yogendra Singh Rajawat
Advocate, Jaipur
22623 Answers
31 Consultations

4.4 on 5.0

No it's not domestic violence. You need to get custody for the same by applying for custody of the child in family court

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

The proposed acts will neither attract the provisions of DV act or IPC 498A.

However for taking revenge on you she may resort to false legal cases against you  and also an act to discourage you from doing such things which she may fear that the child will be drifted away from her. 

Therefore if you have determined to take care of your child's all needs like what you have mentioned in your post, you may have to undergo lot of sacrifices, for example, you may have to compromise your employment to a great extent and also you may have to face hardships  in many forms either from her or from any other source. 

But otherwise since your wife and you are residing in the same house, you may better share the caring of your child with her or may rise up to the occasions.

 

T Kalaiselvan
Advocate, Vellore
84890 Answers
2190 Consultations

5.0 on 5.0

1. This will not give you any primacy over the mother of child if the dispute of child custody goes to court for adjudication.

2. If you want to become primary caregiver for the child then you are free to become one. This is not domestic violence or 498A.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

No, it does cause a DV for helping your own child in developing in physical and mental conditions. You can apply for child custody as per GW Act.

Ganesh Kadam
Advocate, Pune
12926 Answers
255 Consultations

4.9 on 5.0

Dear Sir,

The intended action would never amount to any action against you. However, nothing can be predicted of cruel mind of the lady and hence you are suggested to have proof of all the things including all activities by means of some reliable source of recordings etc. You may have hidden camera, recording devices etc. so that you will be having a say your version in case the lady files a false case. Also be a bit diplomatic, and sometimes, keep sending messages that your don't want anything from her and you are doing your duty as required. 

Ganesh Singh
Advocate, New Delhi
6757 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

No, It does not amount to domestic violence or may attract 498A

taking your matter into consideration...the custody is more likely to be in the hands of mother if the child is on breastfeed and if not,..and you really wants your son to stay with you for his betterment you can establish that your son's mother is unfit for parenthood or is incapable of taking care of him, you may be able to get physical custody, especially if you can show that you are the child's "primary caretaker." Even if you cannot get physical custody of your son, you should be able to obtain shared legal custody, giving you the right to make important decisions about your son's upbringing and welfare.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Over taking wife in feeding child, cooking for him, help him in studies does not amount to DV and it will also not attract 498A.

You are at liberty in helping  your child in his studies, be careful to be soft and caring.

Bottom line is welfare / well-being  of the child is of paramount importance, due to misunderstanding between his parents he shall not be made to suffer.

 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

you are in the domestic relationship with your wife until you get a divorce from the court, it may be possible that you do not cohabit with her. Father is the natural guardian of the child in Hindu Law. both of you have equal right yet, until and unless the court decided the child custody if any. the court will see the welfare of the child only and decide the case and not primary or secondary caretaker or caregiver.

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

1. No it does not amount to domestic violence noir does it attract the section 498A of IPC.

 

2. However, you shall have to file a petition u/s25 of The Guardians and Wards Act, 1890 claiming custody of your child and also praying for declaration that you are his/her Guardian.

 

3. Based on the above court declaration, you can become his/her Guardian and then legally  act as primary caregiver to your child despite resentment from your wife, if any.

Krishna Kishore Ganguly
Advocate, Kolkata
27219 Answers
726 Consultations

5.0 on 5.0

it does not amount to DV. 

It may be time for Marriage Counseling,Marriage counseling can help you rebuild your relationship. Or decide that you'll both be better off if you split up. Either way, marriage counseling can help you understand your relationship better and make well-thought-out decisions. 

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1. Yes it will amount to domestic violence.

2. A child need care from both parents for his better upbringing try to forget your differences while you both are with your child. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

- As per law the custody of the child depends on the age of the child.

1. If the age of the child is below 5 years then the mother will get the custody

2. The male child whose age is above 5 years the father will get custody.

3. Female children whose age is more than 5 years and less than 8 years then the father will get the custody

- However , there is no law , that entitles a father to become primary caregiver of child 

- Further, to win sole physical and legal custody, you should show, the court that awarding you custody is in the best interests of your child due to factors such as your existing relationship with the child, stability of the home life you provide, inability of the mother  to meet the child's needs; mothers  lack of involvement in day to day need of a  child.

- To take care for the betterment of a child is primary & natural duty of father ,and hence by doing this you are not committing any offence under the provision of domestic violence and it also not attract 498A as well. 

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

No. These all activities do not amount to 498A & domestic violence

You should keep on doing them & exhibiting your love & affection for your child

Sital Patil
Advocate, Kota
139 Answers

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