• Who will get custody of kids with divorced parents?

One of my relatives, a mother of 2 kids is seeking divorce, but she does not have a job, and has no regular income. Kids ages are 15 (girl) and 9 (boy). I am assuming the father of the kids will be responsible for financial burden of the kids after the divorce. The family is in Hyderabad. 

This is a case of harassment by the husband. He he having an extra-marital affair and treating his wife like a slave. I would like to know the options on how to handle this and get them separated/divorced.

Please respond to my email at finance020@yahoo.com.

Thank you,
Asked 3 months ago in Family Law from United States
Religion: Hindu
1. Yes the unemployed wife, minor son and unmarried daughter is entitled to maintenance from husband and father respectively.
2. So in your case she can file a case of maintenance under PWDV Act seeking maintenance, compensation and provision for stay from court of law.
3. Alternatively she can ask for divorce by filing sich suit.
4. She can also file case u/s 498A IPC for the tortures perpetrated on her for so many years.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Hi
The custody can be with any of the parent as asked by either of them or mutually agreed by them
The maintenance and educational expenses of the children will have to be completely born by the father
The husband has to give maintenance or one time alimony to the wife as she is not earning anything.
If the husband and wife are  agreeable for a divorce , they can file a mutual consent divorce after deciding about the children custody, maintenance and alimony.
If in case the husband is not agreeable, the wife should file a case against him seeking divorce on grounds of cruelty and adultery  .She can also file petition of domestic violence seeking relief of maintenance and for  residence, under the provisions of 'the protection of women against domestic violence act,2005'
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. If your relative has decided to terminate the relationship with her husband then she should negotiate with him for jointly filing a mutual consent divorce petition after taking adequate compensation and one time alimony and in that case the petition will be disposed of within 6 & 1/2 months from the date of its filing.

2. In the petition itself the amount of one time payment of alimony for herself and her children and custody of the children shall have to be mentioned.

3. The payment of the settled amount shall have to be collected before filing the joint MCD petition or at least after its filing and if he does not pay then she should not attend the 2nd motion for which the MCD petition will be rejected after 18 months from the date of its filing.

4. If the husband is not interested to file MCD petition then she should file a divorce petition on the ground of cruelty for running adulterous relationship and also child custody case seeking maintenance for all of them.

5. She can also file a police complaint against him for running the said adulterous relationship after collecting adequate evidence in support of her allegation.

6. She can also lodge a police complaint u/s498A of IPC and also DV case against her husband to teach him a very good lesson or two.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Your relative can file a marriage petition in the District Court / Family Court for dissolution of marriage on the ground of adultery if she has convincing evidence to prove her case. 
2. Simultaneously, she should file a DV case and seek interim maintenance for herself as well as kids and alternate residence under section 125 of CrPC and also under DV Act .
3. A copy of Court summons should be sent to his present address abroad.
4. If she is not earning then then maintenance ad interim will be granted within 60 days by the Court.
Sushil Jha
Advocate, Patna
161 Answers
1 Consultations
5.0 on 5.0
Wife should seek sole custody of her 2 children in divorce case , maintenance from husband for herself and children and alimony 

2) welfare of children is the paramount consideration 

3) court would award husband visitation rights 

4) wife should file 498A of IPC against her husband for continuous acts of cruelty 

Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
Without a job and any income it will be extremely difficult for her to get the custody as financial worth of the parents is one of the main factors that is to enter the area of consideration of the court to ascertain the welfare of child. Even a parent with an extra marital affair is entitled to get the custody of child if he can secure the welfare of child. The courts in India have time and again ruled that one may be a bad spouse yet a wonderful parent. 
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
Dear Concerned,

In reference to your question please not that given the age of the children the custoday of the Boy will go to the father and the custody of the girl child will remain with the mother. 

In reference to the the situation that the mother is not earning - their is a possibility that the custody of the girl as well is given to father - given the welfare of the child - higher education etc. 

The lady in question should file a maintenance application under Crpc 125 claiming maintenance.

Best of Luck 
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Yes the father of the kids is ultimately responsible for maintenance and finical burden of the kids. Not only the kids, but also the mother (his wife). The person is liable and bound to maintain his wife and the children. In case if the wife seeking divorce, initially concerned family Court will grant interim maintenance for wife and children on interlocutory application filed to that effect. The maintenance will be continue after divorce. The wife can also seek for permanent alimony apart from maintenance, if the matter settled with sufficient permanent alimony the wife can't claim further maintenance. The wife can get divorce on adultery, mental and physical harassment, torture grounds among other. The wife can also file Domestic Violence and dowry cases. The custody of children will be with the mother, however some visiting the rights VB will be allowed to the for the father.  
Lakshmi Kanth
Advocate, Hyderabad
230 Answers
2 Consultations
4.8 on 5.0
In the divorce case, until there is an agreement between the spouses about the kids custody, the kids will remain in the custody of the spouse who are in possession of the kids. 
It is a matter to be decided by the court in the child custody case.
As far as divorce case is concerned, the cse shall be disposed based on the merits on the case and the arguments put forth by both the parties.
T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0
Hi,  
The wife should adopt a legal strategy of squeezing the husband economically and mentally by filing the following cases on the husband.  
1) File a case of interim Maintenance  under section 125 Cr.P.C for the kids and wife. Normally courts will grant interim maintenance of up to 50% of husband salary. 
2) File a case of domestic violence( economic , mental harassment. Even having extra marital affair is domestic violence) and ask for protection orders. Since domestic violence is compoundable, the wife can get atleast 5 times the annual salary as compensation.
3) File a case of 498A and dowry (in 498a, the husband may be arrested if not supporting police enquiry). 
4) file a case of adultery against the husband and the concubine. 
5) file a divorce case on the grounds of adultery and also seek 50% share of property in the name of husband as alimony. 
Your friend only needs a good lawyer who will spear head the legal claims of the wife (wife needs to be present in the court only at the time of filing of case and at time of evidence. Her presence will be minimally required). 
Once your friend  adopts the above mentioned legal strategy, she will be assured of redressal of her grievance on her terms(including monetary) that too with immediate relief. 
Hope this helps
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 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
14177 Answers
128 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3539 Answers
131 Consultations
4.9 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2798 Answers
41 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0