• Divorce and child custody

Hi I have been married for almost 6 years now with a 2 year old daughter.. I want to file a complaint against my wife for harassing my parents day in and day out. Abusing without any reason, raising hand on them whenever I m out for work,  such incidents have happened in the past before. My parents are taking care of the child to the core day in and day out because she goes to work. A recent incident happened when me and my dad took our child along to a mall where she hurt her head a bit in the kids play area itself. Now this woman is blaming it as our carelessness towards the child and been my abusing my parents the whole day and calling them names of the worst kind in our mother tongue malayalam.  
Prior to this as well she has said many times that she cannot adjust with my parents for the simple reason that she doesn't like being told what to do and what not to do. Things like keeping the house neat and tidy,  sitting for prayer and dinner together are not her look out nor concern. She has been getting dinner made for free by mom,  anything ways she doesn't know how to cook nor has she made an effort to do any chores in the house for the simple reason that she keeps giving that she goes to work. My mom also goes to work and takes care of the child throughout the day and after that comes home and prepares dinner for all. These are some of the many reasons that I would like to go for a separation from her.. Somewhere I feel that her own parents are separated and she wants or is trying to create the same atmosphere.. On top of it she was trying to convince me to stay separately from my parents so that she could get her own mom to say with us..Noone would agree to that in normal situation,  so I also didn't. I guess she is taking the revenge for all this by blaming and disrespecting my family for each and every thing.. 
I am only worried about my daughter's future because I don't think she has any interest in her,  because If she had she would have quit her job atleast for sometime til my child grew up. But no, she is completely dependent on my parents because she knows that they love and take care of the child too much to let go off her anywhere.  Please suggest how do I go about separation and having the child in my custody..
Asked 6 months ago in Family Law from Mumbai, Maharashtra
Religion: Christian
1) you cna file for divorce on grounds of mental cruelty

2) constantly abusing parents amounts to mental cruelty

3) record threats given by your wife to your parents 

4) you can seek joint custody of the child 



Ajay Sethi
Advocate, Mumbai
23291 Answers
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If you want separation then you may file a petition for dissolution of marriage on the ground of cruelty as the conduct of your spouse makes out a case for mental cruelty. You may also file for child custody which will be decided on the touchstone of welfare of child as the only consideration. If you can prove that you are more competent than your spouse to secure child's welfare then you qualify to get the custody.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
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1. Do not rush to the decision of divorce . I would advise you to work out the marriage by giving more time and compassion to it.
2. Divorce should be considered as the last resort when all your concerted efforts fails.
3. Divorce suit can be filed in the local court.
4. At the time of divorce suit you have to ensure physical custody of the child. Once you ensure that there is nothing to worry.
4. However if at the time of separation your wife takes the child with you then only option remains to get he back is to file suit for custody.
Devajyoti Barman
Advocate, Kolkata
5226 Answers
54 Consultations
4.9 on 5.0
You can choose anything but be careful and think much about which is suitable for you.You can opt  Divorce or patch up  the things. If you want to patch up then you have to met a physiologist and correct your wife's attitude ,mentality and behavior.
If you want a divorce then file a divorce petition under the ground cruelty. 

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.

Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child.  Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.
1.	Permanent Custody
2.	Interim Custody
3.	Visitation Right
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Hi, It is my kind advice both of you go for marriage counselor and tried to settle the issue amicably. Suppose counselling in the marriage Counselor was failed  then you have no option you can file a petition for divorce.

2. It is better both of you stay together for the welfare of the Child. 
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
As far as the decision about taking divorce or dissolving your marriage with her shall be a different issue to that of the child custody. 
The child custody should not be a barricade or an obligation for a decision to be taken on this. 
If your difference cannot be solved i.e., if there is no way that she and her character can be mend, then you can make a call accordingly.
There are plenty of decision by court on child custody.  
In a recent judgment in Bombay high court whose excerpts are given below:

The Bombay High Court  suggested that family courts have to sympathetically consider the financial, physical, mental stress while awarding custody of child to warring parents. The court pointed out the need of a balanced look by taking into consideration the changing social, financial dynamics and progressive gender equations. In a case that is being presently heard, the family court, after directing the parents to submit a joint parenting plan, had awarded joint custody of six months to each parents relying on the 257th report of the Law Commission. The court had, however, not considered the report in its totality, the father, with whom the child lived, argued and appealed against the order. He also argued that the parenting plan is voluntary and not compulsory. The mother, on the contrary, was content with the arrangement set out by the court. “It cannot be compelled,” said Justice Mridula Bhatkar. Elaborating further she observed that a mother is equal to the father, and who shares equal responsibilities in the child’s upbringing. Earlier, the court said, the mother had no role in taking decisions in the child’s education, career or other development. “She was supposed to feed the child, take his care physically and fulfill the child’s emotional needs. Undoubtedly, all these perceptions and social norms have financial dynamics. Who earns more is a better guardian was the simple rule,” 
.” In addition, the HC went on to observe that there could be a bad husband or a bad wife, but it is not necessary that they are bad at parenting. As a result in most cases, it said, egos or incompatibility led to fights between parents. “They become selfish and the child is put to stake as a pawn by one parent to avenge the other,” the HC observed. It was observed by the court if parents are psychologically stable, positive and happy, then, in turn they can provide a conducive environment to the child to grow..
Having said that, in HC’s opinion, the legal world had eventually discovered a myth in this ground rule and also factors that determined a custodial matters. “The divorces are increasing in the society so more and more children are subjected to the trauma of choosing custody,” Justice Bhatkar said. The society, she said, was becoming “complex” and the parents were striving hard to run a household while trying to provide the best for the child’s future. “Under these circumstances, along with the welfare of the child, it is necessary for the Courts to consider sympathetically the financial, physical, mental stress the parents carry and the emotional plight of the parents while awarding custody.

The above are some hints on how court and law looks into such issues.  You can decide accordingly.
T Kalaiselvan
Advocate, Vellore
14069 Answers
127 Consultations
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