• Jurisdiction of filing the case, son's custody

Hi,
I am married for nearly 8 years and settled in Mumbai. My wife is from Delhi and from the day of the marriage she and her family was asking me to move to Delhi. My wife had problem with my parents and we planned to move into new house which is 15 minutes away from my family house after our son’s birth. Even after moving to the new house she continued complaining about my parents and it was never ending. After her sisters marriage she never came back to Mumbai and instructed me to either move to Delhi / move outside India. I moved to UK and was awaiting her arrival, she now wants me to move to Delhi as she got a job in Delhi and doesn’t want to move. I waited for 2 years waiting for her to consider her decision and then send a notice for my congenial rights. On the receipt of the notice she filled a DV case on my mother and me along with the divorce notice as three different case in Delhi Dwarka court. Now we have to travel every time to Delhi   to attend the case.
I want to know can she file a DV case in Delhi where she is saying there was a Domestic violence happened in Mumbai
She filed a case in response to my congenial rights notice and we stayed separately for nearly 3 years now. Can she still file a case of DV against me and my family?
Although we move to new house after 2 years of marriage can she still file a case of DV against my parents?
She is not allowing me and my family to meet my son through Skype / personally.
Could someone please guide us the right path, I want my son back I and can do anything for him. But everyone suggest it no way I can get my sons custody.
Asked 1 year ago in Family Law from United Kingdom
Religion: Hindu
Hello,
1) Yes, under provisions of the Act the wife can file a DV case in the place of her current residence, regardless of whre the accused stay or where the offence took place.

2) Offences relating to DV are considered as ongoing and there is no time bar regarding the filing of the case.As far as it being a reaction to your notice for restitution of conjugal rights notice, you can take that as a defence in your reply.ontest the case on merit by engaging a lawyer in Delhi.

3) You can certainly file a petition seeking permanent custody and while the said petition is being decided, you can get visitation rights, and that includes meeting via media like skype as well. The granting of custody depends on the discretion of the court after it hears both the parties on merits.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1) DV is a continuing offence it can be filed even after 3 years 

2) wife can file domestic violence case in Delhi as she is presently residing in delhi 

3) your parents can file petition for quashing DV case in delhi high court as you stayed separately with your wife in Mumbai 

4) you can file application for joint custody of your son in delhi . In any case court will award you visitation rights 
Ajay Sethi
Advocate, Mumbai
23383 Answers
1229 Consultations
5.0 on 5.0
I want to know can she file a DV case in Delhi where she is saying there was a Domestic violence happened in Mumbai
Yes, she can do it so but how far it will be maintainable will be seen only during the trial of the case. 



She filed a case in response to my congenial rights notice and we stayed separately for nearly 3 years now. Can she still file a case of DV against me and my family?
It is a continuing offence hence there is no time limit for it.  However on the basis of the circumstances you can put a strong defence and she may not be able to prove her case or succeed in her attempt. 


Although we move to new house after 2 years of marriage can she still file a case of DV against my parents?
She is taking the advantage of the loopholes in the law in her favor. 


Could someone please guide us the right path, I want my son back I and can do anything for him. But everyone suggest it no way I can get my sons custody.
The law says that though the father is the natural guardian for te child until it attains the age of majority, the mother shall keep custody of the child till it attains the age of 5 years until and unless it is proved that such custody is against the interest of the child and it will be harmful for the child and its future. You may file a child custody case under guardians and wards act and also file an application for visitation rights as an interim relief. 

T Kalaiselvan
Advocate, Vellore
14161 Answers
128 Consultations
5.0 on 5.0
1. As long as your lawyer is appearing in the court you are not required to personally turn up in the court. 

2. Under the Indian law she can file the case at the place where she is residing.

3. Her DV case has to be contested on merits to prove your innocence.

4. Your parents can move the HC for quashing of the DV case against her.

5. You are at liberty to file a case for child custody to get the custody of your son. You are being misled to believe that you cannot get his custody, More often than not it is the delay in filing the child custody case which eventually shuts the door on the parent who petitions the court to get the custody of his child as the courts treat delay as waiver of the right to child custody. So if you want your child then file the case without any further delay.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
1. You cannot get the case transferred to Mumbai, but you do not have to turn up in the court as long as your lawyer is appearing. You and your parents qualify for exemption from appearing in the court.

2. Nobody can foretell the result of a legal proceeding in a court of law, but if you try then you may succeed. 

3. The maintenance claim of your wife can be successfully contested if she has not been subjected to domestic violence.

4. The pendency of mediation proceedings does not place an embargo on your right to file the case for child custody. The least you can get is visitation or even joint custody. 

5. You are not required to be in India to file the case for child custody.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
1) come back to India file application for joint custody of the child in delhi

2) you can make application for quashing of DV against your parents 

3) don't bow down to blackmail tactics 

4) you are not liable to pay your wife maintenance if she is working 

5) both have to pay equally for child maintenance if both are working 

6) cases won't be transferred  to Mumbai as convenience of the wife is generally taken into account
Ajay Sethi
Advocate, Mumbai
23383 Answers
1229 Consultations
5.0 on 5.0
Can i move the case back to Mumbai, as i am spending huge amount of money to make my parents travel to Delhi and appear in front of the Judge. They are suffering from diabetes and high BP and have to travel. To harass us further she has filled 3 different case 1 DV case against my mother 1 DV case against me and 1 Divorce case, all in separate date and different judge / Case.

You have to file transfer petition before supreme court for all the three cases separately.  But remember that the grounds mentioned by you cannot be sufficient or substantial reasons for getting the cases transferred to Mumbai from Delhi.  You can file  a petition before the same court where the DV case is going on under section 205 cr.p.c. seeking to dispense with the personal appearance of your aged parents on the grounds of their age as well as distance to travel from Mumbai to Delhi. 



Also my wife is pushing forward for me to personally attend in Delhi Court whereas I am currently in UK for project assignment. It will be quite challenging to travel at every instance when court requires. This is complete false case against me and my family and we are paying the price to accommodate all her vims and wishes. She and her family has been forcing me to leave my parents who are staying in Mumbai and move to Delhi along with her parents. If I agree to her wish everything is fine. 

You may have to manage the situation through your able and efficient lawyer or you may have to come back to India to fight the cases. 



Our Mediation process has started last week through Delhi Mediation centre and my wife and her lawyer was insisting the mediator to ensure I come to Delhi for mediation process. My lawyer convinced the mediator with all evidence of child support till day hence mediator agreed for video conferencing. I know the mediation process will not be successful as my wife is demanding absurd amount nearly a crore rupee as well as 1 lakh rupee per month as sustain cost for baby although she is working in Delhi. Also she has requested the court not to allow access to my son. 

Dont worry if the mediation process fails, let the cases revert to regular court where you can challenge her false cases effectively. 





I spoke to the Mediator about the child custody she said you won’t get the child custody as he is just 4 year kid. I am willing to take all the cost associated with my son but don’t wish to pay my wife. She has already deprived me and my family from meeting or seeing my son for last two years while I was waiting for her to join me in UK.
Should I be filling for babies custody immediately even though the mediation process is ongoing. I have already spoken with my management for moving back to India so that I can apply for my son’s custody. They are willing to accommodate my request.

You can file child custody case immediately with an application for visitation rights to visit the child as an interim relief.  The mediator is not a judge of a regular court, hence just ignore the opinion.
T Kalaiselvan
Advocate, Vellore
14161 Answers
128 Consultations
5.0 on 5.0
Hello,
1) O would advise you to go ahead with filing for child custody. As the child is below 5 years you may not be granted custody, however you have the right to have visitation. Mediation is only a conciliatory attempt and if that's not helping you are not bound by any suggestions at conciliation meeting.

2) If you have an option of moving back to India with your job, do so immediately. This will strengthen your case of child custody.

3) You can file for transfer of case to Mumbai in the Supreme court. However chances of the Court permitting it is slim. As the cases are obviously filed with an intent to harass you can get them dismissed. You can get exemption of personal attendance of your parents in their respective cases.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1. She can file DV case in Delhi but hr case will be very weak for not filing on time,

2. Similarly your mother also can file a DV case at Mumbai against your wife which she has to attend,

3. You can file a child custody case or at least an application praying for your visitation right before the Court where the divorce case has already been filed by your wife.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. Let your parents file an application for waiving their attendance for old agre and ailment,

2. You mother files a DV case against your wife and her mother then they also will face the same problem,

3. You will not get the custody of your child since mother is the natural guardian of a child up to his.her 5 years of age,

4. File an application for child visitation right as suggested in my earlier post.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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