• Wife not allowing access to child

My wife and I are living seperately for about 1.5 years. We have a 4 year old child in the marriage. I love my child. Our marriage was solmenized in 2014. Child was born in 2015. Wife is living with her parents in Pune since June 2019. Prior to that as well, due to differences she had lived with her parents at their Pune house for upto 5 to 6 months. Between 2014 and till date, I have shouldered and supported all my wife and child's care giving expenses and needs.

Present day: Since June 2019, the time from which she is living with her parents in their home in Pune, I have regularly paid (1) Her monthly pocket money (2) a seperate amount for my child's caregiving and needs. I have also ensured that my child is admitted to a school and his school fees, uniforms, and all other fees I pay regularly at actuals. 

However, my wife regularly blocks my access to my child. She has not let me see, speak of meet my child for 2 months at a stretch. I get very concerned and it affects my emotional and physical health. We have decided that we will talaq because, early this year, I learnt about my wife's affair and illict relationship with another person. 

She keeps delaying the talaq process for no reason grounds and just stops my access to my child. I have explained her that if she is delaying the talaq process, till the time it happens, she should let Ibrahim live and spend time with me 15 days each month. But she refuses. With schooling being online, that's completely possible. But she refuses.

My child also loves staying with me because my wife gets violently angry and hits and shouts at my child all the time. So, he always refuses to live with my wife and instead wants to live with me.

What are my rights? And, at a high level, what is the legal recourse for this? My mother in-law plays tryant in all this and starts baseless arguments and fights.
Asked 1 year ago in Family Law
Religion: Muslim

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9 Answers

You can divorce your Wife as per Muslim personal law

 

2) it should be preceded by attempts at reconciliation 

 

3) you can issue wife 3 consecutive monthly divorce notices 

4) reasons should be mentioned for divorce 

 

5) pay her Meher and maintenance during iddat period 

 

6) file petition seeking sole custody of your child as per Muslim personal law

Ajay Sethi
Advocate, Mumbai
84936 Answers
5617 Consultations

5.0 on 5.0

- As per Supreme Court judgement, 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.

- If she is not interested to live with you , then she can take mutual divorce under the Muslim Law legally .

- Further , as per 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.
- Hence, for getting custody of the child , you can file a petition before the court. 

 

You can connect me with via kaanoon.com if further advise needed. 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

Hi,

You have the right of visitation i.e. to visit your child and you can file a petition for his/ her custody to be given to you as well.

The first and foremost right to have the custody of children belongs to the mother i.e. your wife and she cannot be deprived of her right so long as she is not found guilty of misconduct. your wife has the right of custody so long as she is not disqualified. This right is known as right of hizanat (custody of a minor child) under Muslim law (assuming you belong from the Muslim community) and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''

in regards to 'Son' —''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. 

in regards to 'Daughter'- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. 

Father's right of hizanat- 
All the schools of Muslim law recognize father's right of hizanat under two conditions that are:
• on the completion of the age by the child up to which mother or other females are entitled to custody.
• In the absence of mother or other females who have the right to hizanat of minor children.

Do let me know if you have any other queries.

 

Regards. 

Bipasha Mukherjee Roy
Advocate, Bangalore
11 Answers

4.8 on 5.0

You can file a child custody case and also an application seeking visitation rights to visit your child periodically as per your schedule mentioned in the application. 

You can enumerate all your grievances in the petition seeking child custody and application for visitation rights to make your case more stronger and convincing. 

You may follow the procedure for recognized mode of pronouncing Talaq since she is not agreeing for mutual consent divorce or kula. 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

1) You can issue a legal notice through an advocate and mention all allegations in notice and ask her to join and cohabit with you. if she deny then you may issue a talaq e Bayeen notice through qayazat e daftar  . 

2) You have to file petition before the family court to avail custody of your child, your wife cannot retain you from your child.

Mohammed Mujeeb
Advocate, Hyderabad
19012 Answers
31 Consultations

4.5 on 5.0

You need to immediately file for custody and visitation right in this matter. 

Prashant Nayak
Advocate, Mumbai
24930 Answers
58 Consultations

4.4 on 5.0

Hi, need to file petition in the family court for custody and Visitation rights and will get the custody and visitation right to access the child. 

Pradeep Bharathipura
Advocate, Bangalore
5233 Answers
289 Consultations

4.5 on 5.0

Hello sir,

 

Considering your situation,

As a biological father you have all the rights to meet your child. If anyone trying to restrict access of your child  you can file an application for access to your child in court where your living or where your wife is staying. Since your child is too young it's difficult to get custody of child. As you say your wife have affair, you need strong proof to show in court. Mere fact is not acceptable in court.  Along with that since she is staying separate from you, and if she is delaying talaq you can file for divorce in court. 

You will also get option to resolve matter mutually with your wife in court through court councillor.

Since your paying monthly maintenance of your wife n child there will not be a much problem. You have to keep all records of the payment you have made to her. As well as if you are paying for your child education, if possible pay the money directly to education institution, as it will be record in your account that you have paid.

Try to make written conversation with your wife about asking for access to your child for weekend or in holidays without any ambiguous language so that you can show as evidence when you file case in court.

Whenever your mother-in-law make chaos try to record in phone for evidence. Whenever you talk with your wife don't use abusive language and always record the call as evidence to show that she is of violent and careless towards you.

Suvarna Nage
Advocate, Pune, mumbai
18 Answers
3 Consultations

4.5 on 5.0

You can file a complain and asks for joint custody in court or ask for grants you some time to meet your child every month or so. Father has right to visit his child. Further put every details and bills or transactions of every month which you are giving money to your wife for her and your child, put fee reciept everything in your file and show it to the court. 

Sanjna Vaishnav
Advocate, Gandhinagar
57 Answers

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