Seeking divorce advice with my wife
3 years ago
We are married for 6.5 years, every other day we have fighting. My wife uses bad words to my family and wants to keep me far away from them even though we are not staying with our parents. I want to stay separated from my wife, but I want my daughter's custody who is 4.5 years old. These fights and slang are affecting her mental peace and impacting her future growth.
A.You can get custody of child.
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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.
=================================================
Please give me Rank 5 if you feel my answer helped you.
=================================================
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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Narendra Dubey
Responded 3 years ago
A.Hi,
If both of u ready then you can file divorce by mutual consent and if your wife is not ready then you can file contested divorce. With regards to the issue of Ur daughter then u can fight for the same.
Regards
Advocate Narendra
If both of u ready then you can file divorce by mutual consent and if your wife is not ready then you can file contested divorce. With regards to the issue of Ur daughter then u can fight for the same.
Regards
Advocate Narendra
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Vetrivel pandian
Responded 3 years ago
A.Please file a case against ur wife that she is using abusive words and apply for divorce in local district court. Getting child's custody is immediately possible, as its a girl child.
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Hardik Sheth
Responded 3 years ago
A.Dear client,
You shall approach the family court by hiring a good reputed lawyer of your city practicing in the field of family matters.
He shall guide you with the best of his knowledge and will provided you with the justice.
Hope you have been provided by a satisfactory answer from my side.
Kindly reward me with appropriate stars and obliged.
Thank you
Adv. Hardik Sheth
You shall approach the family court by hiring a good reputed lawyer of your city practicing in the field of family matters.
He shall guide you with the best of his knowledge and will provided you with the justice.
Hope you have been provided by a satisfactory answer from my side.
Kindly reward me with appropriate stars and obliged.
Thank you
Adv. Hardik Sheth
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A.Yes, you can get Mutual Divorce from your wife if she agrees. but daughter's custody who is 4.5 years old will be with her Mother who is the natural guardian as per the law. Later on you can apply for Child Custody.
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ADV. ANISH PALKAR (High Court)
If you realize my professional skills, the time & efforts put in by me needs to be truly appreciated, and then Please “CLICK MY LIKES/ THUMBS UP/GIFT” button shown below this reply format & also CLICK/ WRITE a “REVIEW” in 5 star as I have answered your query in detail. Hope this information is useful
ADV. ANISH PALKAR (High Court)
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