Need assistance
4 years ago
Hello,
I have 2sons 1is of age 3 and another of 6months. My wife is becoming very harsh to us and use abused language.she is not managing with anyone at home and not even pampering our kids.
Every second week she fight with us and will go to her parents house. even her parents are finding difficulties to guide her for not doing this.we already had a police complaint against her when she tried to harm my mother.
Please advise how can I get divorce from her and do I get custody of my kids nd if she is the defaulter does I need to pay anything to her. Please guide.
Need assistance for my kids better future.
Suneel Moudgil
Responded 4 years ago
A.The mother usually gets custody of the minor child, under the age of five. but after five it can be given to any parent.
various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc
The most important factor is the BEST INTEREST OF THE CHILD.
various factors are considered while deciding custody petition like financial status, the welfare of the child, will/consent of the child, educational status, living standard, place, extra amenities, etc
The most important factor is the BEST INTEREST OF THE CHILD.
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Suneel Moudgil
Responded 4 years ago
A.try to settle the matter amicably with your wife involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months, and you both will be free to live life with your wish,
don't forget to draft an MOU before approaching Mutual Divorce, which is the most essential and important part of a Divorce case,
some basic points to keep in mind and put in writing through an MOU before filing the petition for mutual consent divorce are custody of kids, distribution of assets (movable/immovable), quash/withdraw of pending litigation if any, Maintenance (present/future), Alimony, mode and time of making the payment, streedhan, future litigation, etc.
if failed, you have two options,
one option is to,
file contested divorce on the grounds of mental cruelty but it will take around 3-5 years,
also once you file contested divorce she will surely file/claim
498a complaint
Domestic Violence case
maintenance,
so be ready for them too,
and,
the second option is to file Restitution of conjugal rights petition in the Court, to show your bonafide intentions to save the matrimonial tie, however, you can withdraw the same any time,
RCR will work as a safeguard to 498a, maintenance, DV etc
don't forget to draft an MOU before approaching Mutual Divorce, which is the most essential and important part of a Divorce case,
some basic points to keep in mind and put in writing through an MOU before filing the petition for mutual consent divorce are custody of kids, distribution of assets (movable/immovable), quash/withdraw of pending litigation if any, Maintenance (present/future), Alimony, mode and time of making the payment, streedhan, future litigation, etc.
if failed, you have two options,
one option is to,
file contested divorce on the grounds of mental cruelty but it will take around 3-5 years,
also once you file contested divorce she will surely file/claim
498a complaint
Domestic Violence case
maintenance,
so be ready for them too,
and,
the second option is to file Restitution of conjugal rights petition in the Court, to show your bonafide intentions to save the matrimonial tie, however, you can withdraw the same any time,
RCR will work as a safeguard to 498a, maintenance, DV etc
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A.Dear Sir,
You can get the divorce if you pay some alimony if you are interested in child custody as your mother is there to look after your children. Lawfully you can divorce within 12 months. Show the heat of the law by directly filing divorce petition without giving her notice etc otherwise she may alert and file multiple cases against you. But think twice before taking decision and take wise decision because you are future person to rear the children.
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Please give me Rank 5 and Review my Resume and Follow Me.
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Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html
CHILD RIGHTS COMMISSION ACT 2006
http://www.kscpcr.com/eng_ver/actsandrules.php
The Karnataka State Commission for Protection of Child Rights (KSCPCR)
4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE
NRUPATHUNGA ROAD, BANGALORE-
Such Commissions are situated in Every State
.==============
Bombay High Court
Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016
Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 84 OF 2013
Forum for Fairness in Education An NGO,
Vs
Union of India and Others. .. Respondents
-
5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:
Father entitled to visitation rights for child’s welfare: Co ..
Father's Visitation Rights
• The right to visit the children at a designated time.
• The right to schedule activities with the children.
• The right to be free of the mother's control during visitation.
• The right to spend the entire allotted time with the children, with no infringement.
Landmark Judgment pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890. Also Read - Research Officers Vacancies in the MHRD Chair on IPR, CUSAT The brief facts of the case as laid down by Justice Sen and Justice C. Nagappan can be put in a nutshell as that custody of the child (below 5 years of age) was demanded both by the father and the mother. The lower court awarded interim custody to the mother with visitation rights to the father. On appeal, the Bombay High Court, Goa awarded the interim custody to the father. The father however shifted to Bombay without intimating to the mother who had to file a criminal writ petition in Bombay High Court which simply disposed it off awaiting the petition on Goa trial court. Subsequently, the SC was approached by the petitioner mother. Also Read - SCBA President Dave launches no-holds barred attack on the Collegium system; says 'what happened in the past 22 years under the collegium difficult... Summarily, the law laid down by the judgment restricting itself to interim custody can be put in bullets as – Three separate definitions of ‘Guardianship’, ‘Custody’ and ‘Visitation’ have been examined in para 5 from Black’s Law Dictionary. Visitation rights have been ascribed the meaning “In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.”. In Para 9, though the mother is a Christian by religion, applicability of HMG Act has been relaxed contrary to the law mentioning that it was not disputed. (Author’s remarks - Whether non dispute of applicability of a statute book by the party in whose favour it speaks renders the application immaterial , has been answered in a plethora of judgments in negative). The custody of a minor shall ordinarily be with the mother. However the use of word ordinarily cannot be overstretched. Para 10 – “We must immediately clarify that this Section (section 6) or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.” Para 13 – “….We must again clarify that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play…..” Frequent visitation does not mean continuous visitation. Whether having permanent residence in India or not is not so important a factor. The focal point for consideration in such cases is welfare of the child. Considering that global relocation is a well known legal concept now, the entitlement as to custody by the left behind spouse has to be jurally investigated. Forum Shopping or Court Shopping by parties to litigation must be firmly dealt with. Also, co-ordinate benches of High Courts must respect prior orders. The parent who does not have interim custody should be allowed to visit the child without removing him/her from the custody of the other parent. Spending more time than is allowed amounts to temporary transfer of custody which is impermissible.
You can get the divorce if you pay some alimony if you are interested in child custody as your mother is there to look after your children. Lawfully you can divorce within 12 months. Show the heat of the law by directly filing divorce petition without giving her notice etc otherwise she may alert and file multiple cases against you. But think twice before taking decision and take wise decision because you are future person to rear the children.
=================================================
Please give me Rank 5 and Review my Resume and Follow Me.
===================================================
Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html
CHILD RIGHTS COMMISSION ACT 2006
http://www.kscpcr.com/eng_ver/actsandrules.php
The Karnataka State Commission for Protection of Child Rights (KSCPCR)
4TH FLOOR, KRISHI BHAVAN, RANI CHENAMMA CIRCLE
NRUPATHUNGA ROAD, BANGALORE-
Such Commissions are situated in Every State
.==============
Bombay High Court
Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 2 May, 2016
Bench: A.S. Oka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 84 OF 2013
Forum for Fairness in Education An NGO,
Vs
Union of India and Others. .. Respondents
-
5 Before we deal with the constitution of a State Commission, it will be necessary to make a reference to the functions and powers of the State Commission. Section 24 provides that the provisions of Sub-section (1) of Sections 13 and Sections 14 and 15 which are applicable to the National Commission are also applicable to a State Commission. Sub-section (1) of Section 13 of the said Act reads thus:
Father entitled to visitation rights for child’s welfare: Co ..
Father's Visitation Rights
• The right to visit the children at a designated time.
• The right to schedule activities with the children.
• The right to be free of the mother's control during visitation.
• The right to spend the entire allotted time with the children, with no infringement.
Landmark Judgment pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890. Also Read - Research Officers Vacancies in the MHRD Chair on IPR, CUSAT The brief facts of the case as laid down by Justice Sen and Justice C. Nagappan can be put in a nutshell as that custody of the child (below 5 years of age) was demanded both by the father and the mother. The lower court awarded interim custody to the mother with visitation rights to the father. On appeal, the Bombay High Court, Goa awarded the interim custody to the father. The father however shifted to Bombay without intimating to the mother who had to file a criminal writ petition in Bombay High Court which simply disposed it off awaiting the petition on Goa trial court. Subsequently, the SC was approached by the petitioner mother. Also Read - SCBA President Dave launches no-holds barred attack on the Collegium system; says 'what happened in the past 22 years under the collegium difficult... Summarily, the law laid down by the judgment restricting itself to interim custody can be put in bullets as – Three separate definitions of ‘Guardianship’, ‘Custody’ and ‘Visitation’ have been examined in para 5 from Black’s Law Dictionary. Visitation rights have been ascribed the meaning “In a dissolution or custody suit, permission granted to a parent to visit children. In domestic relations matters, the right of one parent to visit children of the marriage under order of the court.”. In Para 9, though the mother is a Christian by religion, applicability of HMG Act has been relaxed contrary to the law mentioning that it was not disputed. (Author’s remarks - Whether non dispute of applicability of a statute book by the party in whose favour it speaks renders the application immaterial , has been answered in a plethora of judgments in negative). The custody of a minor shall ordinarily be with the mother. However the use of word ordinarily cannot be overstretched. Para 10 – “We must immediately clarify that this Section (section 6) or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.” Para 13 – “….We must again clarify that the father’s suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability; only then and even then would the comparative characteristic of the parents come into play…..” Frequent visitation does not mean continuous visitation. Whether having permanent residence in India or not is not so important a factor. The focal point for consideration in such cases is welfare of the child. Considering that global relocation is a well known legal concept now, the entitlement as to custody by the left behind spouse has to be jurally investigated. Forum Shopping or Court Shopping by parties to litigation must be firmly dealt with. Also, co-ordinate benches of High Courts must respect prior orders. The parent who does not have interim custody should be allowed to visit the child without removing him/her from the custody of the other parent. Spending more time than is allowed amounts to temporary transfer of custody which is impermissible.
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Ayantika Mondal @ Prime Legal
Responded 4 years ago
A.Hi,
You have a good ground/s for divorce along with the child custody, request to approach a lawyer at your jurisdiction to proceed. Paying maintenance and alimony depend on many facts such as her educational qualification, job status, etc etc, so tough to comment on it without proper discussion/ consultation.
A small request, as you know she has recently given birth to your son and right after delivery, estrogen and progesterone levels drop dramatically, which contribute to the “baby blues” or postpartum depression, would u like to give a last try with a professional/ expert in dealing such issue, if you are at Bangalore, you may try at nimhans.
thanks
You have a good ground/s for divorce along with the child custody, request to approach a lawyer at your jurisdiction to proceed. Paying maintenance and alimony depend on many facts such as her educational qualification, job status, etc etc, so tough to comment on it without proper discussion/ consultation.
A small request, as you know she has recently given birth to your son and right after delivery, estrogen and progesterone levels drop dramatically, which contribute to the “baby blues” or postpartum depression, would u like to give a last try with a professional/ expert in dealing such issue, if you are at Bangalore, you may try at nimhans.
thanks
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Subramanian Venkates Jayakumar
Responded 4 years ago
A.Thanks for your enquiry. Try to solve this issue with elders of the family amicably since kids are very small. Both should consider your kids your wrong steps may impact kids future. If any further assistance required pls feel free to contact me.
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Sidhaarth
Responded 4 years ago
A.You can file divorce case and can also claim custody of children. For custody you shall be required to give exceptional grounds against wife in order to get custody of children. Legally you are liable to pay maintenance to wife if she does not possess sufficient income from her resources enabling her to maintain her. Maintenance has nothing to do with any default. If required consult with details.
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