Sir / Madam,
My elder brother's wife has gone to her parents house & not returned. She is not answering the phone, its her parents who is answering our calls. Seems like she is not interested in coming back & my brother too is not keen in continuing wiht this relation. They have 2 year old kid & we want the kid. how do we proceed, kindly advice.
Asked 3 years ago in Family Law from Bangalore, Karnataka
Thank You Sir! Its a hindu wedding & the marriage is not registered. Do we need to file for divorce? If yes, then will he have to pay the maintenance?
Asked 3 years ago
There are (1)The Hindu Minority and Guardianship Act 1956 (HMGA) and (2) Guardians and Wards Act 1890 (GWA). These Acts are to be read together and implemented in the matter of child custody and appointment of guardian for the minor.
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of 5 years should ordinarily be with the mother. However, if you have a strong evidence to prove in court that your brother can take better care of the child; then would it be possible to have custody of the child. However, technically speaking, the courts award the custody taking into consideration the welfare of the child.
Yes, Under HMA you have to file for divorce. Maintenance issue will not arise when your wife is already an income and is a working.
If both of them are not interested in continuing the marriage, it is advisable to approach her for divorce through mutual consent.
As you are not able to establish communication with her, you can issue legal notice asking for restitution of conjugal rights or for divorce.
If there is not contest over the guardianship of the child you can inform the court about the same and after the reconciliation proceeding court will grant divorce and guardianship.