• Habeas Corpus against father after filing of mutual divorce

Hello, My wife was having extra marital affair and we filed for divorce with mutual agreement 4 months back. It was agreed and is written in the petition that our 3 year old daughter will be my responsibility because she wanted to be with her BF. Now she has changed her mind and filed usual dowry, domestic violence etc reports against me. Along with that, she has also filed a case of illegal detainment of our daughter in high court of other state, saying that she was forced to sign the mutual petition. I have got a notice to be present along with the child. I have better financial standing, school session of our daughter is on in which she excels, our signed mutual petition with our fathers as witnesses, proof of her characterlessness and neighbor testimonies of her being bad mother. I wanted to know what chances do I have that court will see through her lie and let me retain custody. Please help me. I would really appreciate it.
Asked 1 year ago in Family Law from Indore, Madhya Pradesh
Religion: Hindu
1) you should appear in court on the next date with your daughter 

2) file detailed reply to the petition denying the allegations made in the petition 

3) enclose consent terms filed in family court wherein your wife agreed that you will have sole custody of the child 

4) you have to prove that there is no illegal detainment of the child 

5) welfare of child is paramount consideration 
Ajay Sethi
Advocate, Mumbai
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2. As far as custody of the child is concerned, you have nothing to worry. The custody will remain with you.
2. However the case on dowry harassment will remain against you in which her low morale is of little consideration.
3. You may nevertheless challenge the validity of the said case by filling quashing petition in high court.
Devajyoti Barman
Advocate, Kolkata
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Hi, you have to go to the High court along with child and make a submission before the court that the child was staying with you voluntarily and because of her bad character  i constrained to file a divorce  petition by way of  mutual consent.

2. Normally under this circumstance court will dismiss her writ petition as the High court has no authority to decide the custody of the child.

3. You have to submit before the court because of the personal vendetta she has doing all these mischievous things.
Pradeep Bharathipura
Advocate, Bangalore
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Under the circumstances no habeus corpus case lies. So dismissal of the said case is a foregone conclusion.
I find no harm in filing divorce suit by you.
If you prove her continuing unchastity then maintenance can be avoided.
Devajyoti Barman
Advocate, Kolkata
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54 Consultations
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1) wife who had committed adultery is not entitled to any maintenance 

2) file for divorce on grounds of adultery and mental cruelty if your existing divorce petition for divorce by mutual consent is dismissed 
Ajay Sethi
Advocate, Mumbai
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1212 Consultations
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1. If you have the required degree of proof to prove that you are better placed than your wife to secure the welfare of your child and also impeach the character of your wife then you stand a fair chance to get the custody of your child, but uncertainty of result is the hallmark of every legal proceeding.

2. Child custody through habeas corpus has no bearing on the divorce case which may be filed by either of you. If the HC rules in your favour the judgment of the High Court will have to be obeyed unless it is set aside by the SC.

3. A wife who commits adultery does not qualify to get alimony. 
Ashish Davessar
Advocate, Jaipur
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I have got a notice to be present along with the child. I have better financial standing, school session of our daughter is on in which she excels, our signed mutual petition with our fathers as witnesses, proof of her characterlessness and neighbor testimonies of her being bad mother. I wanted to know what chances do I have that court will see through her lie and let me retain custody.

Though law is made to safeguard women’s rights and safety, growing trends shows allegation of abuse against their husbands is used as a tool to get an advantage in financial division. Fathers especially need to be bewaring of restraining orders, since they can restrict you from your children. Fathers need to make sure their children feel that they are interested in maintaining the contact. So, it is necessary for yo to communicate sensibly to your child about what’s going on and how you still care for it before taking her to the court on the hearing of HCP.
In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.''
Yo can argue before court that a mother who neglects the infant child as she does not want to sacrifice the type of life she leading, can be deprived of custody.  The evidences in your possession and the supporting witnesses can make your job very easy to dismiss her petition and repudiate her claim. 



T Kalaiselvan
Advocate, Vellore
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But If I win this Habeas Corpus case, how can I ensure that this judgement is given consideration during divorce case too.

The decree pronounced in the HCP benefiting you shall be an additional evidence to prove her character before court where you seek divorce against her.





 As I said, her characterlessness can be proved easily and she is a terrible mother. My lawyer says that I shouldn't file the divorce case on my own. Do I have to pay alimony despite her cheating on me and not fulfilling responsibilities of wife and mother.

 You can very well file a divorce case from your side on the grounds of adultery.  Generally a woman alleged to live in an adulterous life and deserted her husband is not eligible for maintenance or alimony, but it depends on how you plead and conduct the divorce case. 
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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