• To know about child custody & alimony

I got married before12 years& have a daughter also. My husband & I had been living alone without my mom in law in Ahmedabad. Now they are harassing me for lasrsix years for divorce, but they don't want to give me single rupee as alimony. So my mother in law has kept my daughter with her for last 2 years& they are not even allowing me to meet har , in fact my daughter is in the complete control of my mom in law.My husband works in a pharmaceuticals company& shifted toMumbai recently. His monthly earning is 90,000rs Or more than that. Now I am at my parents' house & I want my daughter with alimony. They would sure try to prove me charecterless& irresponsible. I m planning to put a case for maintenance & my daughter's custody. I am M.A., B. Ed  & was working in a school as a teacher but now I m jobless.So what should I do& what can I get? My husband had previously planned everything so he has taken so many loans to prove that he hasn't money. What could happen in this matter. He has a home in his native village& 2 low budget flats. So how much alimony I can get?
Asked 10 months ago in Family Law from Bardoli, Gujarat
Religion: Hindu
1) since you have been married for 12 years court would grant you alimony 

2) alimony is at discretion of court. it depends upon number of factors your income , husband  income , standard of living , years of marriage etc . draw attention of court to fact that husband has land in native village , 2 flats etc

3) you can seek custody of your daughter . 

4) you can file for divorce on grounds of mental cruelty and seek alimony , child custody and other reliefs 

5) you can also file DV case against husband and MIL and seek alternative accommodation , maintenance and other reliefs
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
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1. File a DV case against your husband in mom in law praying for maintenance and separate accommodation,

2. Also file a child custody case which you are likely to get since your daughter is with your mom in law,

2. His plan of reducing his monthly earnings by arranging deduction of EMI will be of no use since he has to maintain you by begging or borrowing as has been ordered by the supreme court.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
5.0 on 5.0
1. You should have taken legal recourse much before and I wonder why you have waited for so long.
2. Now file a case under PWDV Act praying for maintenance for you
3. File a writ petition in high court of habeas corpus to get back your child.
4. The monthly maintenance should be around 1/3 to 1/5th .
Devajyoti Barman
Advocate, Kolkata
5179 Answers
54 Consultations
4.9 on 5.0
 To get your child back you are required to file a petition for child custody against your husband. The least that you can get is visitation rights. It is the duty of your husband to support you financially if you are not earning on your own. So you can file for maintenance and also seek compensation by filing a complaint for domestic violence. The quantum of maintenance will be decided by the court having regard to your husband's income and liabilities.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
5.0 on 5.0
Hello,
1) You have a few options to choose from. If you do not wish to obtain divorce but claim maintenance/alimony from your husband you can file a petition under provisions of Protection of Women Against Domestic Violence Act . Hereby you can seek compensation for tortures you underwent, maintenance, protection and residence either shared or separate.

2) If you wish to divorce him agree for a mutual consent petition provided you are given an alimony you ask for and the custody of your daughter.

3) In the alternative you can file a petition for divorce on grounds of cruelty and seek maintenance, alimony and custody or visitation rights to meet your daughter.

4) There are various factors that come for the consideration of the court while determining alimony. The duration if your marriage, if your current unemployment is resulting from your marriage, how long it can take fit you tho find employment or the cost of a rehabilitation, the earning of your husband etc.

5) Engage a lawyer locally and he will help you with the procedures.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
The Protection of Women from Domestic Violence Act, 2005 can help you for getting maintenance,protection and accommodation. The DV Act provides that the aggrieved person may approach not only the Magistrate but also the Civil court, Family court or any other courts and seek relief’s including protection orders, residence orders,monetary reliefs,custody orders, and/or compensation orders. The D.V. Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society.

The maintenance amount can get higher if its a long marriage.A Court intervening under the Hindu Marriage Act undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at the juncture when the marital status is affected or disrupted. It also retains the power subsequently to be invoked on application by a party entitled to relief.  A nd such order, in all events, remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. 

The Supreme Court of India has held that no fixed formula can be laid for fixing the amount of maintenance.A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband.The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income. If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance. 

You have every right to seek custody of your chiold. To get your child back you are required to file a petition for child custody against your husband.The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother. 
Ajay N S
Advocate, Ernakulam
1910 Answers
19 Consultations
5.0 on 5.0
You can file a maintenance case under section 125 cr.p.c., the court will depend on how you prove his income.
Generally it shall be 1/3rd of salary income.
Besides maintenance case, you can file a fresh case for custody of child under guardian and wards act.  In that itself you can file an application seeking visitation rights to visit your child till the disposal of the main petition as an interim relief.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0
you file complaint under section 12 DV Act and claim maintenance, lump sum amount as compensation and living right [ residential relief ] in matrimonial home. These right are available under section 18 to 22 DV Act. 

you are victim of domestic violence and this only fact is enough to establish your case and makes you entitle to get appropriate relives under the act. 
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
if you file any other petition in HMA or maintenance and guardianship act it will take many years to decide. court takes many years to pass Interim order but proceeding under DV Act is swift and take hardly 2 months to get interim relief and 6 months to 1 years for final disposal of case. 
Shivendra Pratap Singh
Advocate, Lucknow
2731 Answers
41 Consultations
4.9 on 5.0
Hi, it is the duty of the husband to maintain his wife and children so your husband has to pay the maintenance to you .

2. For custody of the child is concerned you have to file a petition under Guardian and wards act 
.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) you should visit your mother in law place and bring your daughter with you . custody of daughter is awarded to mother till puberty . welfare of child is main consideration 

2)you have not mentioned what is your husband income . maintenance depend your husband income , your standard of living etc . 

3) gather evidence of his income an then apply to court for maintenance and other reliefs 
Ajay Sethi
Advocate, Mumbai
23151 Answers
1216 Consultations
5.0 on 5.0
Her wish will be taken into account as she is 10 years old, so if she refuses to come to you then the court will not grant custody.
Ashish Davessar
Advocate, Jaipur
18061 Answers
447 Consultations
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1.Custody of child is granted considering the welfare of the Child who is not considered as property to be acquired. In your case, your child will be asked as to whom she would like to stay with. your staying without her custody for such a long time will certainly go against you though you have fare chance of getting her custody since your MIL is an old person and at the tender age of your daughter, you are required to have her custody,

2. If you are not employed, you are likely to get maintenance from your husband which may be in between 1/5th to 1/3rd of his monthly net salary,

3. You should have taken remedial legal action earlier. However, at least act now.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
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1.My husband& I separated just a month before. We were living together in Ahmedabad & my daughter was with my mother in law. He has kept her there 2.5 years before by giving excuse of insecurity of his job. I was telling him again& again to bring my daughter with us but he was not bringing.
My daughter's age is10 years& as I hv described earlier she is living with my mom in law for last 2.5 years& is in complete control of her. What if she refuses to come with me. So how much chances I hv to get her custody.

The reason that he daughter is living with somebody other than her father itself shall constitute a strong ground for seeking custody of child.  Your in laws are third parties especially when the parents are alive, so you may file a child custody case on this ground too besides making pleadings on other genuine grounds/reasons. The child is a minor and her refusal to accompany you shall not make the court to allow her to live with her grandparents if you have proved that your husband is not living with the child to give proper care.  Once the court is passing an order to keep the child in your custody, you can enforce the order by bringing the child back to your home.  The child is a minor and ha no choice to decide anything in this regard on her own.






2.I am M.A., B.Ed & working as a teacher in a private school & was earning around14,000 per month in Ahmedabad but since Bardoli is a small town schools are paying poorly, so I am not working here& in big cities I can't afford living costs.
The question is not about your employment, it is about your child custody.  If you re not employed you may seek maintenance from your husband as advised earlier.








3.My husband has planned everything before so he was torturing me one or another way& I was even upset & under depression because of loneliness. 
You can also challenge all his moves by making perfect counter plans and thwart all his designs.
T Kalaiselvan
Advocate, Vellore
13948 Answers
127 Consultations
5.0 on 5.0

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