Sir/Madam, This incident happened 10 months ago. I've got two kids (7 year and 3 year young kids). I was not available at home and my wife left the house without informing me and took my elder son from school in the mid time. Younger kid was not started school at that time. I'm very much emotional and very much attached with my kids, she is just taking the advantage of my weakness. I'm very upset because she didn't allow me to meet or talk to my kids. i've not seen my family since past 10 months. She even didn't shared her new address with me, since she wants to hide herself. Now, I've got confused that whether should I send her a notice to come back or file the case to get the kids custody or file the case against her that she kidnapped/ got kids without my consent. I'm not able to take the right decision. Please suggest me. Secondly, I've bought a flat few years back and added her name as well. And that flat is with joint name. Sir, please tell me that what are the possibilities on this, I know this is not possible to sell the flat without her signature, but due to covid19 I've lost my job and not able to pay the EMI's and now I want to sell the flat. Please suggest me on this as well. Thank you so much for your advice.
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1. You cannot file a case of kidnapping you can send a notice or can file a case for custody of your children also praying for interim visitation/custody.
2. Further if your wife is cruel to you you may file divorce on that ground that she left you and she is not returning back.
3. See she has equal share in the property to sale the flat you need her signature in flat it won't be practical for you to sale the undivided share.
1. Don't file any suit as the same would only compound your present complications.
2. The dispute doesn't appear to be too grave or irreconcilable. Sk go and meet your wife. Personal touch often resolves hardest of disputes.
3. With regard to the flat your with will continue to have half share there in.
I tried very hard to talk to her since past 10 months but the main problem is her family. Initially, they were against our marriage as well. Sir, If I file petition, what are the chances to get the custody of my kids and what would be the consequences for that. As a father, what are the chances that I get the custody. On the other side , what are my rights as a father. Please suggest.
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.
- And further, Supreme Court in a matter of Vidhya Viswanathan vs. Kartik Balakrishnan , AIR 2015 SCC 285 has held that , Not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, amounts mental cruelty to such spouse, and also a ground for divorce.
- If you want to continue with her, then you can send her a legal notice on the last known address , and ask her to join the matrimonial life.
- If, within 7 days of time , she not response , then you file a case for Restitution of Conjugal right , on the ground of the said legal notice.
- Further , if you dont want to continue with her , then the easiest & shortest way to get decree of divorce from the court is Mutual divorce, i.e you should take her consent of your file to file a mutual divorce petition.
- If, she is not ready for mutual divorce then you should file a Divorce petition on the ground of cruelty as i mention above with child custody.
- However, you can also lodge you complaint before the police and higher official, as information, after mentioning the details and also for threatening to implicate you in false dowry cases.
- Under Hindu law, A mother usually gets custody of the minor child, under the age of five and fathers get custody of older boys, but it is not a strict rule and is primarily decided based on the child’s interests.
- The choice of a child above the age of nine is considered, and further a mother who is proven to neglect or ill-treat the child is not given custody.
- As per law , being the joint owner in the property , you share is half , but if she was not working that time , then you can get the full ownership of the said flat after proving the payment from your account.
Goood luck and dont forget to rating Positively.
You can get the custody if not but surely get the visitation rights for your children. You need to file the same in family court
you can try and negotiate with your wife for a reasonable monetary consideration in return of transfer of property on your name. However, I doubt your wife may accept that. Legally you don't stand a chance to get the properties back.
You have equal rights in respect of custody of the child.You can file petition for custody..
You can also go for restitution of conjugal rights to restore your marital life.
Inform bank of your inability to pay EMI and to auction the flat
2) if there is shortfall both will have to pay
3) you can file petition for RCR if you want your wife to return to her matrimonial home
4) seek sole custody of your kids
Welfare of children is paramount consideration
2) court can award you joint custody of children
3) in alternative you would get visitation rights
1. You may first serve her a lawyer's notice asking her to return.
2. The flat that is registered jointly in your and her favour cannot be sold by you without her consent unless she releases or gifts her share to you or otherwise executes a GPA in your favour to authorise you to sell her share for and on her behalf.
3. You are free to file petition for child custody against her. A case of kidnapping cannot be registered against biological parent for taking the child away.
4. Mother is the natural guardian of child who has not attained the age of 5 years, but this is not a cast iron rule. The only consideration for court has to be to ensure that welfare of child is protected.
File a private complaint of parental kidnapping against your wife and in-laws before magistrate.
Present environment of child can not be changed without court order or mutual consent.
Apart from criminal complaint immediately file custody case. Delay would count on may reasons and you may be deprived of your custody right to your children. You have already delayed for around one year allowing your child to adapt and grow in the new environment. Any further delay may go against you and court may think it proper not to again change the present environment of the child which may badly affect their welfare due to further change of the environment .
So immediately file parental kidnapping case and custody case without any delay. Delay will eat all merits in your favour .
Custody of chilren will rest with mother but you can obtain visitation rights by filing petition in court.
Address is not known, where she is, so file complain to police agaisnt her family of kidnapping. At least police will ascertain her address.
Father is legal guardian of child. Court may allow custody of older son to you and talking and visitation rights with young child.
If only you have contributed in purchase of house than you are sole owner and if you have potential buyer and buyer is agree to purchase without her signature than sell the property. Dont forge her signature.
Chances of custody suit is almost zero unless it's proved that life of the child is endangered in the hands of another. Lack of income doesn't not prove that welfare of the child which is of paramount consideration is at stake at the hands of mother. As advised earlier litigation will not solve your problem when your personal effort can.
File a section 9RCR
File a permanent custody petition for childs
First file these two
You can issue a legal notice to her instructing her to return to the matrimonial home immediately with the children as she has abandoned the matrimonial home as well as your company on her own without any valid reason.
Alternately you can file a child custody case seeking custody of your children with an application seeking visitation rights to visit your children as an interim relief.
No case for kidnapping shall be maintainable.
You cannot sell the property on your own if it's a jointly owned property.
She has to sign the document for executing the registered sale along with you
As a father you have equal rights on the children.
You may have to fight the case on merits in your side. You may discuss with your advocate at length before taking any decision in haste.
Dear Sir,
First of all you are suggested to be mentally strong and have courage to face the things because it will take some time to solve the things. You are suggested to send her a notice to come back with kids and if she does not return, file the case of restitution of conjugal rights against her. Wait for her reply in the case and if there is denial from her side, file the case of child custody against her. Reflect in your petition that the best welfare of children is possible by you only.
As per father you can apply custody or visitation rights as per GWA, and with the help of Bank send a letter to wife as well to repay the EMI or the flat will be auctioned. Try to get auctioned sell in your favor with the help of bank officer, so here your wife can't do anything when bank it self sells the flat and ask buyer to pay you remaining amount on your name instead of jointly.
Response to your first post:
First you make up your mind as to you want to take divorce / live with her.
If you want to take divorce you can file for divorce on ground of mental cruelty.
If you want to live with her, you need to send notice to her asking her to come and join matrimonial house (restitution of conjugal rights), to the last known address and also to your in-laws address.
You have to file an application seeking custody of children.
Since you are not in a position to pay EMIs you can inform the Bank to take action for recovery of money as per T&C of agreement in case of default, since you cannot bring your wife for settlement.
As a natural father, you have right to take care of the children, on making application for custody of children, the court may give custody of elder son but younger one will be with his mother.
Other way round, the court may give custody of children to mother and give you visitation rights to meet children.
It is not the rights of parents, but the welfare & well being of the children is of paramount importance.
Dear querist,
1. you can file a Restitution of conjugal rights application under section 9 of the Hindu Marriage Act, 1955 this will bring your wife and kids back. You can send a legal notice first.
2. in case this fail, you can apply for custody of your children under section 6 of Hindu minority and guardianship act. till the time child is of 6 months the right to custody is of natural guardian i.e. mother, but since your children are above that, it depends on other facts such as who can take care of the children better.
Please don file a kidnapping complaint as it will be against you only.
YOU can contact me for consultation or on linkediin, in case you need my assistance.
https://www.linkedin.com/in/yuganshu-sharma-655091183/
Regards,
Hello,
1. See court may considering the welfare of children may provide custody or alternatively visitation rights to you.
1. First of all find out your wife's where about and negotiate with her for settling the dispute amicably since divorce is considered as the 2nd most stressful even in one's life which people refuse to understand initially. Moreover, you never know whether your next partner will be any better or not.
2. If she does not want to continue with you under any circumstances, file a child custody case under Guardians and wards Act.claiming custody of your both the sons for their welfare.
3. Since mother is considered as the natural guardian of her son up to his 5 years of age, you might get bthe custody of your elder son while custody of your younger son might be awarded to your wife.
4. You can inform the Bank that you won't be able to pay the EMIs any further for which they can sell off the said mortgaged flat to recover the dues standing in both of your names in your loan account.
5. If you do not pay the EMIs for 3 months, the Bank is expected to initiate SARFAESI Proceeding to finally take possession of the said mortgaged flat to sell it of and recover the outstanding amount lying in your loab account.
6. The extra amount collected from the sale proceed, if any, after seeling the flat will be equally distributed amongst you and your wife.
1. Father becomes the natural guardian of his son after he crosses 5 years of age.
2. So, you are expected to get the custody of your elder son.
3. There is hardly any chance for you to get the custody of your younger son unless you can prove that his custody if awarded to you wife will be detrimental to his welfare.
1. You cannot lodge complaint for kidnapping against your wife as she is also natural guardian of her children and take them where ever she want without your consent.
2. You should file RCR petition to bring her back send notice to her parents place.
3. You can sell your share from the flat without consent of your wife as one co-owner can sell his share without consent from other co-owners.
- Advisable to go for RCR under HMA Act then filing straight the Child custody as it will go against you and might show the intention to the court that you are the one who is against this marriage.
- Post RCR filled, you can raise the point to the family court to have children visitation rights which will surely be taken under consideration by the Hon'ble Court.
- Do not file the divorce in any case at this stage as it will affect the whole case.
- Keep a close watch on their move in terms of filing the cases so that you can prepare yourself accordingly.
- For rest of the guidance feel free to connect with case details.
Regards
Vivek Arya