Best option is to agree fir divorce by mutual contest 

2) in all cases parties are referred to counselling 

3) you can take the plea that you want reconciliation and not divorce 

4) withdraw your consent fir MCD if you so desire 

5) attempting to strangle your wife and child can lead to criminal case against you 

5) if FIR is filed apply for AB 

6) relatives would be considered 

Yes you can ask for reconciliation but it depends on both the parties and not single party

• Reconciliation – Yes, you can request the family court for mediation and reconciliation before divorce is granted. Courts usually allow this.

• Police complaint – A warning is not an FIR. But if your wife later files an FIR under IPC 323/324/498A/307, it can lead to criminal proceedings.

• Anticipatory bail – Advisable to consult a criminal lawyer and apply pre-emptively for anticipatory bail to avoid sudden arrest if FIR is filed.

• Child custody – If you are jailed/unfit, custody will first go to blood relatives (grandparents, uncles/aunts) under Hindu Minority & Guardianship Act—not straight to foster care.

• Immediate steps –

  • File a Guardianship/Custody petition naming trusted relatives as alternate guardians.

  • Keep medical records to show you are taking treatment.

  • Engage both family lawyer + criminal lawyer for parallel support.

1. Can you legally seek reconciliation/mediation if you do not want divorce?

Yes, if your wife has filed (or will file) for divorce, you can request the family court to refer both parties to counseling or court-appointed mediation in an effort to reconcile. Indian family courts often encourage mediation and may order several sessions before proceeding with litigation, especially when one party shows willingness to continue the marriage.

2. Can the police complaint still lead to criminal charges later?

Yes, a police warning does not legally bar your wife from filing a formal FIR based on the past incident of aggression. If your wife files a new complaint or if the police choose to act on the previous incident (especially if new evidence is presented), you may face an FIR and possible criminal charges under sections related to assault or domestic violence.

3. Should you apply for anticipatory bail?

If you have reason to believe your wife may file a formal FIR against you alleging a cognizable, non-bailable offence, you can apply for anticipatory bail under Section 438 CrPC even before FIR registration. Consult a local criminal lawyer to discuss the timing and process; anticipatory bail can protect you from immediate arrest if a case is filed.

4. If arrested or unfit, will your child be sent to foster care?

No, courts do not automatically send children to foster care if a parent is arrested or found temporarily unfit. As per Indian law, priority for the child's custody and care is given first to close blood relatives—like grandparents, uncles, or aunts—who can be appointed as the child’s guardians. Only if no suitable family is available does the court consider foster care.

5. What legal steps to secure your child's custody or guardianship?

• File a petition for guardianship or custody under the Guardians and Wards Act, highlighting your bonds, your blood relatives’ willingness to care for the child, and the child’s welfare.

• Prepare legal documentation (such as a will or affidavit) nominating trusted family members as guardians if you are incapacitated.

• Maintain all evidence of your child’s upbringing, your financial and emotional support, and your efforts for his care—these will support your claim in court.

• If your present wife has not adopted your son, she has no automatic legal rights as his guardian.

You may engage us for legal advice, representation, or drafting relevant guardianship petitions to further secure your son’s interests. This guidance is confidential and based solely on your facts

In the divorce caase, the family court will send you both for mediation/counselling which is a mandatory requirement, you can express your version i the mediation session and request for reconciliation.

The police has not registered a FIR  hence there is no case pending agaisnt you.

If at all she again lodges a complaint and the police is registering FIR, then you may have to obtain anticipatory bail.

The child's welfare is paramount hence the court will decide about it on the basis of the circumstances prevailing at that time.

You are already the natural guardian and having full custody of the child, hence don't worry about   child custody

- Only on the complaint of your wife , the police will not take any legal action against you , in the absence of other witnesses. 

- Further, if you want to live with her and she is living separately then file a petition for restitution of conjugal rights before the family Court, 

- However, you can approach the mediation cell for reconcile the matter with her 

- Since, there is no FIR lodged then no need to take anticipatory bail , and even if she lodged an FIR then you will be informed by the police officials before arresting. 

You can contact me, if further suggestion needed. 

1. Oppose divorce and request mediation through family court.
2. Keep a lawyer on standby for anticipatory bail if an FIR is filed.
3. Immediately move a Guardianship Petition to secure your child’s legal custody.
4. Prepare a Will/nomination for your child’s guardian if something happens to you.
5. Since mental health issues are involved, maintain medical records and treatment proof—this shows you are taking responsibility, which helps in both matrimonial and custody matters.

1. Can you ask the family court for reconciliation/mediation if you don’t want divorce?

Yes.

• Under the Hindu Marriage Act, 1955, and also under the Family Courts Act, 1984, the family court has a duty to attempt reconciliation between spouses before proceeding with divorce.

• When your wife files a petition for divorce (even mutual consent divorce requires both parties’ signatures), you can refuse consent. Without your consent, there can be no mutual divorce.

• In case she files a contested divorce, you can request the court to refer the matter to mediation/counselling. Courts often do so.

2. How serious is the police complaint incident?

• Since the police only issued a warning and did not register an FIR, it currently does not amount to a criminal case.

• However, your wife is free to lodge a formal complaint later. If she does, sections like IPC 323, 324, 325, 506, or 307 (attempt to murder) could potentially be invoked, depending on how she describes the incident.

• Importantly: If an FIR is lodged later, it is not automatically barred just because police previously gave a warning.

3. Should you apply for anticipatory bail?

• You cannot apply pre-emptively unless an FIR has been filed. Courts won’t entertain anticipatory bail in a hypothetical situation.

• What you can do:

  • Keep an eye if she files any FIR.

  • In case she does, immediately apply for anticipatory bail under Section 438 CrPC.

  • Also, prepare medical documentation about your mental health condition—this can be relevant for both bail and defence.

4. What happens to your child if you are arrested or declared unfit?

• The child will not directly be sent to foster care.

• As per the Guardians and Wards Act, 1890 and the Juvenile Justice Act, 2015, preference is always given to blood relatives (grandparents, uncles, aunts, or adult siblings) before foster care is considered.

• Since your current wife has no legal rights over the child (not adopted), she cannot automatically claim guardianship.

• If you are jailed or unfit, the court will first look at grandparents or other relatives from your side or the child’s late mother’s side.

5. Legal steps to secure your child’s custody/guardianship immediately

Here’s what you should consider doing:

1. Execute a Will – You can state who should be your child’s guardian if anything happens to you. Though not binding, courts give strong weight to it.

2. File a Guardianship Petition – You can move the court under the Guardians and Wards Act to officially appoint a guardian (could be you, or a trusted relative, or even your present wife if you want her recognised).

3. Adoption Process – If you want your current wife to have legal standing, you may initiate adoption under the Hindu Adoption and Maintenance Act, 1956, but note:

   • A stepmother cannot adopt without your consent.

   • Since the biological mother is deceased, only you need to give consent.

   • After adoption, she will have equal legal rights.

4. Keep Medical Records Ready – Show you are under treatment and taking steps to control your condition, which strengthens your case for custody.

Answer: Dear Client, 

You do have a right under the law to resist a mutual divorce petition and instead seek reconciliation or mediation under the family court, since courts do try their level best for settlement before resorting to divorce. But the incident of violence in the past is a serious one, whereas no FIR was lodged, your wife still may move for one later on, and for safeguarding yourself, you can think of applying for anticipatory bail as a precautionary measure. As for your son, because your present wife has not formally adopted him, she has no automatic rights of custody, and if you were at any time deemed unfit or arrested, the court would generally place the child in the care of your blood relatives (for example, grandparents) before it would resort to foster care. In order to enhance your position and provide security for your child, you should forthwith seek to file guardianship/custody orders under the Guardians and Wards Act, and also record your continued mental health treatment to demonstrate to the court that you are taking your condition seriously.

I hope this answer helps. For further queries, please do not hesitate to contact us. Thank you.

• Do not consent to mutual divorce if you want reconciliation.

• Keep anticipatory bail petition ready with your lawyer.

• File a Guardianship Petition nominating relatives for custody of your child.

• Execute a Will/Guardianship Deed naming a guardian.

for more details you can take my consultation

regards,

Adv. Arunkumar Khedia

(Bombay High Court)

Hello, thank you for sharing your situation so honestly. It’s good you want to seek reconciliation and protect your child’s future.

1. Yes, you can definitely ask the family court for reconciliation or mediation. Courts encourage amicable solutions especially when children are involved, and mental health issues are taken into consideration.

2. The police complaint, even if only a warning was issued, can potentially lead to criminal charges later if your wife decides to file an FIR. It’s important to be cautious and seek professional advice.

3. Applying for anticipatory bail now can be a wise precaution if you fear a formal FIR may be lodged in the future.

4. Regarding your child’s custody—usually, if a parent is unavailable or unfit, courts try to place the child with close blood relatives like grandparents first, before considering foster care. But legal custody must be secured properly.

5. To protect your child, consider filing for legal guardianship or custody explicitly through the family court. This can safeguard his rights regardless of your marital status or health issues.

Mental health is a serious matter, and the court can provide support rather than punitive measures when it is proven. I strongly recommend you consult a family law expert to help you navigate this and prepare legal documents to protect you and your child.