• Child custody in case of Divorce with Mutual Consent

Hi, Me and my wife were blessed with a baby girl in Sep'20 but due to ongoing differences between both the families, she has sent a notice seeking Divorce with mutual consent in Nov'20. For the past 3 months, I have mailing / messaging her to share details , photos of the girl child but I have not been given any form of access to the baby girl. Also, when I had visited my wife's parents house (where she is staying currently), they asked me to leave and did not allow me to meet my baby girl. Me and my family has decided to give the divorce with mutual consent. Hence my questions are as follows
1. Me and my wife are equally educated and earn similar pay. Should I still have to pay any maintenance or alimony to her?
2. Can I ask my wife to return the gold given to her during wedding or later by me or my family?
3. Since the kid is very young, it would be very difficult to get the custody, but can it still be claimed for by giving out reasons of cruelty from wife and her abusive nature?
4. If custody is not agreed, can I claim for visitation rights without paying for the child maintenance?
5. Can I seek custody of the child after 5 years even when the mutual consent divorce petition / decree says no visitation or custody rights shall be claimed by me?
Asked 10 months ago in Family Law
Religion: Buddhist

3 answers received in 2 hours.

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16 Answers

1. You may deny to pay any amount towards maintenance to your wife owing to her sources of income and employment, however you may be liable to pay maintenance to your child.

2. You can very well ask her to return the same since they do not become part of her stridhan.

3. You can file a child custody case and seek visitation rights to visit your child periodically as an interim arrangement.

4. Yes, but you cannot deny maintenance to the child.

5. If you have relinquished your visitation rights or custodian rights to the child and the same has been made as an endorsement in the divorce decree  then you have less chance to file any application at a later stage. 

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

You don’t have to pay wife any maintenance as there is no difference in your incomes 

 

2) gold constitutes her streedhan . You can k ask for her gold 

 

3) welfare of child is paramount consideration 

 

4) wife woukd be awarded custody of child

 

5) you would get visitation rights 

 

6) you have to pay for child maintenance 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1. She is not entitled to maintenance but the child is for which your liability is half of total maintenance. 

2. Gold gifted to her during marriage is her Stridhan property and hence not liable for return. 

3. You can ask for interim visitation of the child. 

4. Visitation or custody has got nothing to do with maintenance of child.  Both are to be separately treated. 

5. Yes.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
363 Consultations

5.0 on 5.0

You are biological father of child 

 

you can insist your name be used 

 

3) you have to pay child maintenance 

 

4) no FIR can be registered 

 

5) you would not get custody of your child 

 

6) you can seek money from your wife but chances of getting are bleak 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1. If she wanted to take mutual divorce then you can settled the question of alimony with her , and she can waived the same.

- In mutual divorce , the decision of maintenance /alimony is not depend upon the court . 

2. No, legally you have no right on the jewellery items , gifts given by you at the time of marriage 

3. You can approach the court for custody of child

4. Yes , generally visitation right is given by the court 

5. No party can go out of agreement / decree of the court passed at the time of mutual divorce. 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

1. The child is born to both and both the biological parents are having equal rights on the child.

she can be a feminist but that in no way can deprive the rights of the father over the child.

Her unilateral decision to name the child with her own design without consulting the husband  and not giving any regard or respect to the feelings of the father of the child is not only illegal but against natural justice.

She can agitate only if her personal rights have been affected by her husband's attitudinal behavior and not that she can establish her supremacy by taking her own decision on the bringing up of the child especially when the marriage is still subsisting or she has not been given sole custody by an order of the court. 

You can object to it and also refuse to pay maintenance to the child due her arrogance and deprivation of your rights over the child.

2. If it is is insisted that you have to relinquish your custodian rights and are forced to give sole custody to your wife upon  legal separation, then you can add this sentence that your wife shall not claim maintenance towards the child's bringing up  that she will take care of  the child on her own.

You can insist on child visitation rights if at all she would claim maintenance to your child in future.

3. No FIR or criminal case is liable or maintainable.

However you can file a child custody case and seek visitation rights to visit your child periodically as per the schedule or time table given in the application seeking visitation rights.

4. If the sole custody of the child and relinquishment of visitation rights to visit child has been made in the decree and judgment in the divorce case, you may not be  able to pry for both or either at a later stage.

This decree of divorce cannot be even  appealed against .

5. It is your will and wish, there is no legal infirmity in making any such demands.

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1. Academic qualifications is not a ground to decide maintenance. The test is whether wife is earning sufficiently or not. Even with most robust educational qualifications a person may be without a source of income.

2. Mother remains the natural guardian of child until the child attains the age of 5 years. During the period of natural guardianship of mother, courts ordinarily do not uproot the child from mother except if there is evidence which proves that her conduct is unbecoming of mother. You will get visitation rights and contact rights.

3. Cruelty of wife to her husband does not ipso facto translate into motherly cruelty. A woman may be a very bad wife but a good mother.

4. You cannot force your wife to add your surname in child's name.

5. You will be liable to pay maintenance for child even if you relinquish your claim to custody/visitation rights.

6. No FIR is made out against either parent for blocking access to child by other parent. Your remedy is only before the Guardianship Judge.
7. You are free to seek money to consent.

8. Any arrangement on child custody/visitation rights which forms part of mutual divorce petition, once countenanced by the court, cannot be subsequently challenged unless there is unimpeachable evidence which suggests that welfare of child is in peril.

Ashish Davessar
Advocate, Jaipur
30745 Answers
913 Consultations

5.0 on 5.0

you cant force her but seek directions from court for the same

It depends on your agreed terms with court. If agreed you need to pay otherwise No

you need to approach court for visitation rights or contempt proceedings against wife if she is not abiding courts order

yes you can seek custody if she is not adhering to consent terms filed before earlier court

you can decide the conditions mutually

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

Dear Querist 

My opinion on your queries are as under: -

 

1. yes, being a father this is your and the child's right 

2. yes, you have to pay if she demands the maintenance of the child as you are duty-bound to maintain your child

3.  A Guardianship Petition can be filed against her along with an interim application for visitation right before the Family Court where she resides.

4. Yes, you can, at any point in time you may file a child custody case being the father your right can not be relinquished.

5. No, there is no requirement but to execute an MOU/Settlement Deed with all the terms and conditions and those conditions should be part of the mutual consent divorce pleadings.

 

 

Feel Free to Call

 

Nadeem Qureshi
Advocate, New Delhi
6084 Answers
287 Consultations

4.9 on 5.0

You can file for divorce if your wife refuses to return to her matrimonial home inspite of RCR 

 

2) you will have to pay maintenance to wife if she is not able to maintain herself 

 

3) seek joint custody of your child

 

4) have discreet affair with another lady 

 

5) lawyer cannot be blamed 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1.  If she is refusing to rejoin you even after you getting a decree in your favor in the restitution of conjugal rights case, you may have to wait for one year and then file a divorce case on the same grounds.

You can very well establish that she is unwilling to join you and continue this marital life hence she is deemed to have abandoned you or deserted you on her own, therefore she is not entitled to any maintenance, however you can object to her maintenance application if she files one citing the said reason and not on your own, voluntarily. 

2. You first of all apply for child custody invoking the provisions of guardian and wards act and in that you can file another application seeking visitation rights.

In your petition you can aver the incidents that made you to approach court of law seeking the relief of visiting your child as well as custody.

You can present strong arguments in your favor to convince the court about your plight. 

3. What is situation that you are asking for citation or judgment, there are plenty of judgments, you may first ascertain what you would like to do and what legal action you plan to initiate and the reliefs you desire. 

4. There is no illegality in indulging in an act of adultery or extra marital affairs during the subsistence of your marriage or even strained relationship with your spouse or during the pendency of matrimonial dispute before court of law.

Provided, you do not get married to to your concubine/girl friend during the subsistence of your marriage. 

5.  No. You better do not pay heed to her lawyer neither be in touch with her lawyer.

You have nothing to do with her lawyer hence do not have any contacts with her lawyer, you can take the assistance of your lawyer 

 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1. Yes, after getting decree in the RCR case , you can file a divorce petition if she refused to accompany you .

- Further , if wife refuse to join the matrimonial life with her husband after passing direction from the court, then she is not entitled to get any maintenance. 

2. She cannot refused to meet to your child legally.

3. Contact a lawyer for getting the same 

4. Supreme court declared that , when  a man and a woman in love live together , is part of the right to life and not a criminal offence, and further live-in relationships is legal in India.

- Hence, you can have affair with other woman , but cannot marry without getting divorce from your first wife. 

5. No, 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

1. The RCR case is not a solution for rejoining or living together.

She cannot be forced to live with you against her willingness.

You can file a divorce case after the lapse of one year after getting the RCR decree in your favor, before that you are required to send her a notice to return to the matrimonial fold and offer conjugal rights as per the court orders. 

If she prefers to not to return to the matrimonial fold even after one year of this steps, you can file a divorce case on the grounds of cruelty citing this as reason for divorce. 

In any case the matrimonial dispute is between the spouses and not between the  father and the child.

Therefore you cannot refuse or avoid paying maintenance to your child even though the child is living with her mother.

2. Nobody can predict what she can do. She too has engaged a lawyer who would be guiding her on certain issues including filing criminal cases against you if she feels that your tortures are intolerable, hence you can expect anything in this regard.

3. Since you have filed the petition seeking restitution of conjugal rights, you should be mentally prepared to take her back as it is, because you sought her to return to the matrimonial home and not that she filed this petition.

In case she continues to trouble and harass you as she used to do earlier, you may decide either to file a divorce petition or to somehow manage her to the extent possible. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

1) if both are earning maintenance for child should be paid by both parents in proportion to their incomes 

 

2) she may file false dowry harassment case and Domestic violence case against you 

 

3) you can file for divorce if wife refuses to return to her matrimonial home even after expiry of one year of RCR decree 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

1. Yes If she is eligible to claim it. 

2. Yes

3. It's a general question with probable answers. 

If you need any further assistance then you can approach me through kaanoon or LinkedIn.
https://www.linkedin.com/in/prashant-nayak-5477b138

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

1. As per law , it is the duty of both the parents to maintained the child and if both are earning hand. 

- Further , after passing of order of RCR  in your favour , she cannot claim maintenance for herself , but for the child you both are accountable. 

2. If she not appearing before the court then court may pass ex-parte order , and the said order will affect her cases if she files , and further you can file a contested divorce case against her .

3. You can lodge a compliant against her . 

Mohammed Shahzad
Advocate, Delhi
7982 Answers
85 Consultations

5.0 on 5.0

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