• Divorce and child custody

Sir, i am married in 2009 and have a boy of 4 years age.we are living apart from past 1 year.my husband is a son of political leader and with his power he took away my kid forcibly by attacking my house at night time by breaking the odors.I have given a complaint against this and the police have filed fir in 498(a), 448, 427, 363, 506 r/w 34 ipc but are not taking any action due to their political power.now how can I proceed in order to get my kid back and get divorce. He might not be willing to give divorce because he is a psycho.please tell me how can I proceed.
Asked 2 years ago in Family Law from Visakhapatnam, Andhra Pradesh
Religion: Hindu
1) you can file for divorce on grounds of mental cruelty under section 13 of Hindu marriage act 

2) in said proceedings you can also seek custody of your child as well as maintenance from your husband for your self and kid . 

3) if police is not taking action on your complaint you can move HC by filing habeas corpus petition to direct production of child which has been kidnapped by father 

4) you can also file domestic violence case against your husband and seek alternate accommodation and other reliefs
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the ground of cruelty or any other grounds and also sough for interim maintenance and also sought for custody of child and request the court to direct your husband to present the child before court and he has to present the child in the court and normally court will give custody to  mother and not father and some times depends upon the facts of the case and don't forget no one is above law.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
You may move an application u/s156(3) of CrPC before the local Magistrate for direction upon the police to take effective measures and investigate the complaint made by you and the FIR filed in this regard.
Simultaneously, you should file an application for divorce u/s 13 of the Hindu Marriage Act on grounds of cruelty, and also file an application, along with the divorce application, for custody of your child.
His father's political clout may affect action by police; however, it may not affect the judicial process; you have to take your chances.
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0
Dear Querist
You should filed a domestic violence case against him before court and claim maintenance, protection, child custody, residence order and compensation. as per section 12, 17,18,19,20,21, & 22 of Protection  of Women from Domestic violence Act,2005.
file a divorce case against him before Family Court or your area where you lived or where you lived with him.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
You can give a police complaint for forcefully taking the kid and for trespassing. Then file a petition for getting  the custody of the kid  and get that FIR into the custody case and file a DV case and residence permission if needed. Then file a case for divorce on the ground of mental cruelty trespassing etc.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1. To get your son back, file a Writ Petition against police inaction immediately also praying for handing over the custody of your child since you are his natural guardian upto his 5 years of age,,

2. Have you filed Divorce Suit or any other case against your husband?

3. If not, you can file DV case claiming maintenance and residential right.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
Dear Client,
The son of politician is not above the law. You can take all available legal action against them. If they took your minor son , you should report  the matter to your Station House Officer, if the house officer not register case of kidnapping , you can approach High Court through WRIT petition.You are advised to file divorce at your own under section 13(1) of Hindu Marriage Act before family court. If any legal assistance you can contact me through admin, I am available at Hyderabad. Need not worry about the political power, the law is Supreme and will take its own course.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
you did not worry as case is already registered you may ask progress report of case through court. you also file case under DV act to get many remedies under the act.
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
You should file a Writ Petition against the  Police authority seeking   direction upon the police to take effective measures and investigate the complaint made by you and the FIR filed .
Further, you can file a   divorce on the ground of cruelty under Section 13(1)(ia) under the Hindu Marriage Act 1955.In addition to this you can file an application under Section 24 of Hindu Marriage Act 1955 or Section 125 Criminal Procedure Code . Simultaneously, you can also file domestic violence case against your husband.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
Hello,
If the police fails to act you can for a private complaint in the Magistrate court and the court will give direction to the police to act.
Regarding custody of your kid as he is below five years of age you can move a petition to the court seeking custody. In fact you can file for divorce and at the same time pray for custody of your child.
Rest assured no political powers can influence the court and justice.
You also have the option to move the High Court with a Habeas Corpus petition demanding the production of the child before the court.
Engage a local lawyer to help you in all these.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1. till the age of 5 years mother is the natural guardian of her child.

2. you can file a suit before district court for custody of your child.

3. file a criminal case against your father-in-law under section 363 (kidnapping). for this you need to lodge FIR, if it is not written by the police then send a copy of it to the S.P. of the district, if again no action is taken against the accused then proceed to the court under section 156(3).

4. if again no action is taken against the accused then proceed  to the high Court in writ jurisdiction and write a letter to the mahila aayog. 

5. In this case it is certain that high court will take coercive action against the accused.

6. don't afraid you must take custody of your child and fight against evil. 

4.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
1. Since political clout is working over the police it will not perform its duty unless it gets dressing down from the High Court. Once the High Court pulls up the police and orders it to take the necessary action then alone the prosecution will proceed on the right track.

2. It is illegal on the part of your husband to take away the child forcibly. Move the High Court without any further delay to obtain the custody of your child who was unlawfully uprooted from you. No political clout works on a court of law much less the High Court. You may also seek maintenance for yourself and your child from your husband.

3. If he is not willing to go for mutual divorce then you may unilaterally file a petition for divorce on the ground of cruelty.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0

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