Divorce and child custody

Dear Client,
A person can restart his or her life afresh at any stage or age if she or he is inspired or encouraged to do so by well-wishers. If you feel you can manage yourself outside without the support of others for all your needs, nothing prevents or restricts you from walking out of your toxic marital home to look for the destiny of your choice. So, you need to arrange for an independent source of income to live your life on your terms. In the prevailing situation, you have the following legal remedies to resolve the crisis. 1) You can file a complaint against your husband and his other family members who subjected you to domestic violence in the local police station under Sec.12 of the PWDV Act, 2005. Under Section 12(1) of the DV Act, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application directly to the Magistrate seeking one or more reliefs under this Act that include the right to reside in the shared household, prohibitory order and residence order. Even, Magistrates are empowered to issue maintenance orders under Section 20(1)(d) of the D V Act. 2) You may consider judicial separation or divorce on the grounds of mental cruelty to resolve the matter permanently. Either spouse can obtain a decree of divorce if one spouse has treated the other with cruelty. Section 13 (1) (ia) of the Hindu Marriage Act, 1955, allows either spouse to seek divorce on the grounds of cruelty. If there is no possibility and no scope of mutual consent divorce, you can file a one-sided/contested divorce petition before the Family Court/District Court where the couple last lived together, such as their marital home, where the marriage was solemnized, or where the wife currently resides praying for a decree of divorce and seeking maintenance or alimony from the husband. The party seeking divorce can submit audio, video, or written evidence to prove his or her claim. As regards maintenance post-divorce, be informed that both under Section 25 of the Hindu Marriage Act, 1955, and under Section 125 Cr. PC(Section 144 of BNSS), any person having sufficient means is liable to support his wife and children, provided she is unable to maintain herself and her children. A contested divorce is more expensive and time-consuming than a mutual consent divorce. However, grounds for one-sided/contested divorce reflect the various challenges and complexities that may arise in the course of divorce proceedings. It is always recommended to consult an expert divorce lawyer to get the right legal advice before filing a contested divorce petition. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. As per the Guardians and Wards Act 1890, once a child achieves the age of 9 years in India, his/her preference for custody is considered by the Court based on the best interest standard, and the well-being of the child on appeal seeking custody of a child by either parent. If you are not financially sound enough to continue with litigation expenses, you can apply to the Member Secretary, State Legal Services Authority, or the District. Legal Services Authority seeking free legal services available to women under Section 12(c) of the Legal Services Authority Act, 1987, to contest the cases in the Court for appropriate relief.

Dear Client,

At first, lodge a domestic-violence complaint with the police, under the Protection of Women from Domestic Violence Act, requesting protection, residence, monetary relief and interim custody of your children, at the same time file an FIR for cruelty and dowry harassment under IPC 498A/406 (and any other applicable sections) and submit every proof you have videos, chats, witnesses to show his alcoholism, physical and sexual abuse, dowry demands and neglect.

Engage a family-law advocate to file for divorce and permanent custody under the Guardians and Wards Act, plus interim maintenance for you and the kids under CrPC 125, do not leave home or sign anything until protection orders are in place to avoid retaliation or false counter cases, and reach out to women’s helplines (181) or NGOs for immediate safety and counselling, knowing that courts usually award custody to the primary caregiver when the father is abusive and the children (aged 9 and 8) clearly prefer to stay with you.