• How can I file a divorce and get custody of my child?

I am 34 years of age and married since last 7 years. currently staying in Jamnagar
My wife keeps going away from me almost every year after fighting. 
Her complaint is that i do not talk to her much. In 2009 she left for the total of 5 months twice in a year, 2011 4 months, 2013 7 months, 2015 4 months till now. we had a child in 2010 she is 5 years of age and now she has taken her too. She is a housewife and currently staying at her parents home.
What should be the forward path? 
How to go about it? 
Can i file a divorce and what are the Legal consequences of that to my mother and married sister? 
What are the chances of me getting the custody of my daughter?
Asked 1 year ago in Family Law from Ghaziabad, Uttar Pradesh
Religion: Hindu
Since there is a child I would advise you not to go for divorce just now and give some time to this marriage.
There are many us and downs in a marriage which is required to be worked out.
Have patience , talk to you wife and engage family elders to intervene.
If that fails then go for divorce , first for mutual divorce and then for contested divorce.
If mutual divorce does not happen then the wife can file 498A case involving your parents and sister. 
However nothing to worry as once you get bail which you should easily get half the battle is won.
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
1)you can file for divorce on grounds of mental cruelty 

2) you can seek joint custody of the child 

3) court can grant your wife 183 days custody and you 182 days 

4) your wife can file 498A and DV case as counter 

5) if wife files 498A case obtain Anticipatory bail from sessions court 

Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
1.You have already spent 7 years of married life with her. It will not be prudent on our part to go for divorce when your child is growing since divorce is the 2nd most stressful event in one's life and it will have a devastating effect on your child,

2. If reconciliation is not possible, collect evidence of her cruel behaviour including leaving you periodically for long period of time and file a divorce petition along with a petition for child custody,

3. Alternatively you can propose your wife, mutual consent divorce after deciding about custody of your child amicably since MCD will be disposed of within 6 & 1/2 months of its date of filing,

4. After you file divorce suit, she might file DV case or 498A complaint against all of you including your mother and married sister which you shall have o contest fittingly.

Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
1. Child custody and divorce are two substantive legal claims which do not have a nexus with one another. You are free to file for divorce on the ground of cruelty and a separate case for child custody.

2. No legal consequences ensue to your mother and married sister from the filling of divorce, but your wife may hit back by filing false cases of dowry and domestic violence, in which event you should seek bail to preempt your arrest and then contest the cases on merits.

3. A case of child custody is decided on the touchstone of welfare of child. If you can prove that you are better placed than your wife to secure the welfare of your child then you succeed to get the custody.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
If you have decided to divorce her, you can consult a local avocate and initiate the divorce process on the grounds due to which you seek dissolution of your marriage.
Since your daughter is 5 years old, you may get the custody of your child by filing a separate petition under guardian and wards act or Hindu Minority and guardianship act, 1956.
Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. 
Thus you can prepare the grounds accordingly.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of cruelty and in return she may file a police complaint for offence under section 498/a IPC.

2. In case if she filed a complaint then you have to take anticipatory bail before the court.

3. For the custody of the child the court will consider only the welfare of the child....if you able to prove before the court that your daughter will live happily then you will get the custody of the child.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Child custody is most-sought after aspect of divorce, with each parent trying at their wits end to gain legal guardianship of their child. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Parental rights are the legal obligations and responsibilities that a parent has for their child. Failing to fulfill the needful duties result in child abuse or neglect, thereby terminating the parental rights legally. But neglecting duties in India is hardly a matter to be considered as enough for terminating parental rights. Termination can be voluntarily or involuntarily, and for various reasons. However, here our concern is to deal with parental rights after divorce.

As per the law until the child completes 5 years the mother has the every right to keep the child in her custody and it cannot be challenged unless there exists certain essential grounds which may affect the welfare of the child. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs is the only criteria.

the essential grounds for getting a divorce.
1.	Adultery – as alleged 
2.	Impotency – as alleged
3.	Harassments from the in-laws
4.	Co-habitation not done repeated demands 
The entire above are leads to cruelty. Acts of cruelty are behavioral manifestations stimulated by different factors in the life of spouses, and their surroundings and therefore, each case has to be decided on the basis of its own set of facts. Mental cruelty can consist of unusually callous, neglectful and deliberately harass conduct, false accusation of adultery or unchastity, false charge of impotency, undue familiarity with third person, deprivation of property, drunkenness, false criminal charge by one spouse against the other, reprehensible conduct, refusal to have marital intercourse, refusal to consummate marriage, communication of disease, demand for dowry etc

If you think to divorce then file a case for divorce under the ground cruelty.Other wise settle the matter amicably with the help of close relatives.And consult a marriage counselor or physcatrist
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
433 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0