• Divorce

R/Sir/Ma'm,
Seeking your precious advice for my freind whose wife had been left his house alongwith their 05 year old daughter to live in with her old freind who is living in the same locality, it seems that she is planning for this from 08-10 months. A few days back she provoked my freind and start the fight while he was leaving for the office and in the result she left his house alongwith daughter and shifted to a rented apartment which she had rented alongwith her live in partner. Now my freind wants to take divorce from her but he wants  the custody of his daughter can he legally claim for her custody, second his parents gifted her jewellery at the time of wedding and it is of handsome amount keeping her behaviour in mind now they are demanding their jewellery and other precious things back from her but she is reluctant and threatened them to file a suite againt them for dowry. After marriage they came to know that she had affair with some guy earlier, now being in old age they are feeling humilated as well as cheated. Please suggest some solution so that atleast my freind can get custody of her daughter for which he is quite capable and has have full support of his family, his daughter is also reluctant to go with her mother and want to stay with her grand parents and father.

Regards,

M S Chauhan
Asked 1 year ago in Family Law from jaipur, Rajasthan
Religion: Hindu
1. Your friend can file suit for divorce on the ground of adultery and cruelty.
2. He can file suit for custody of the child as well.
3. Do not hand over her ornaments just now as it is a good ploy of negotiation to settle the dispute at your terms.
4. Once you handover all her ornaments she will start filing cases against you to counter the child custody.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
1) your friend can file application seeking joint custody of the child 

2) since daughter is only 5 years old court will not grant him some custody 

3) jewellery gifted to wife constitutes her streedhan  and  husband has no rights on the same 

4) if wife has affair after marriage husband can file for divorce on grounds of mental cruelty and adultery 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
Now my friend wants to take divorce from her but he wants  the custody of his daughter can he legally claim for her custody,
She is living an adulterous life,hence your friend can file the divorce case on the grounds of adultery by impleading the adulterer also as a second respondent, besides he can add desertion and mental agony as additional grounds for divorce in his pleadings. 
He can file a child custody case under guardians and wards act on the same grounds (adultery), his plea will be considered.



second his parents gifted her jewellery at the time of wedding and it is of handsome amount keeping her behaviour in mind now they are demanding their jewellery and other precious things back from her but she is reluctant and threatened them to file a suit against them for dowry?

Legally speaking, all those gifts received by her from her husband or his relatives also belong to part of Stridhana and it becomes married women property, meaning thereby she becomes the absolute owner of such properties. However there is nothing wrong in claiming the jewels given to her for the sake of the daughter's future.  Let she threaten, you can make the demand keeping the daughter's future as a shield.

T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1.	Your friend can file Divorce petition under the ground cruelty and adultery. Adultery is a ground for divorce under Section 13(1)(i) of Hindu Marriage Act,

2.	For getting the custody of child he may file a custody petition. The first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Sir, for your kind information actually my freind's parents are demanding their ornaments back from her wife as she cheated him and his family but she is reluctant and don't want to return any.
Regards,

If your friend's parents demand the their ornaments back, they are right in their claim, though the law says otherwise.  In any event she may lodge criminal complaint, at that time your friend can give a counter case that she fled home with the jewels kept at home while fleeing the home.  Let she make a defence, hen you can put pressure to bring back the jewels as well as the child back to home.  But this should be a well planned strategy, so that she is not becoming aware of it immediately.  She should not be able to withstand the counter attack.
T Kalaiselvan
Advocate, Vellore
13932 Answers
127 Consultations
5.0 on 5.0
1) wife is not bound to return ornaments given to her at time of marriage or after marriage . 

2) it is her streedhan her exclusive property 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
5.0 on 5.0
1. For her to start a live-in relationship with a man before getting divorce from her husband amounts to committing bigamy. Her live in partner can be prosecuted and punished for adultery. So your friend can launch the criminal prosecution of his wife and her live in partner by filing a criminal case in the court.

2. He can also file for divorce on the ground of adultery if he has been able to collect proof of her living with another man. A wife who commits adultery does not qualify to get any financial support from her husband, so if she files for alimony your friend can successfully contest her claim.

3. To get the custody of her daughter he is required to file a separate case for child custody. Any delay in filing the child custody case impairs the claim in the court, so tell him to proceed swiftly.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. yes, he can file a child custody case against her before family court in which the child is ordinary residing.

2. all the gift and dowry article will be her Stridhan and she will be the absolute owner of those article hence there is no question of return the same as per law.

3. he may file a divorce case against her before the family court under section 13(1)(i) of Hindu Marriage act-1955 on the ground of Adultery but if he has any proof of the same because in this case the person who is her live in partner will also be a party.

on this ground the child custody may be handed over to your friend.


Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0

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