1. Mother is the natural guardian of her child till he/she is 5 years of age and your son is just 2 years 7 months old.

2. So, it is obvious that you will not get custody of your child now for which you should not file any child custody case till he crosses 5 years of age.

3. You can file a petition praying for increasing the visitation days from once in a month to once in a week.

4. Your wife is not entitled to any maintenance for her from you.

5. However, she can claim maintenance for your child and in that case your child's expenses shall have to be equally shared by both you and your wife.

Hi

Generally custody of a child less than 5 years is allowed to mother.

In your case , your wife is working and you will have to prove it that she has not been taking care of your child and has got no time to take care of it, so it is entrusted with her parents or care taker.

in short you should prove to the court that you are a better parent and the child's welfare is best with you than her.

If your wife is working and you have less income , maintenance will not be ordered but for the child you are liable to pay maintenance.The maintenance amount she asked is exorbitant court will order an amount for the child's maintenance temporarily after considering your income, expenditure and other liabilities of loan, insurance, dependents etc.

she is not entitle to get any maintenance from you as she is able to maintain herself. proved before the court that she is earning.

child custody will be decide by the court based on the facts and circumstances of the case, if court think fit that the welfare of child is with you then court may pass order in your favour. proved before the court that you are the best person for welfare of the child.

Feel Free to Call

1) since wife is highly qualified doctor and working she is not entitled to maintenance

2) file an application under section 91 crpc calling upon wife to produce her income tax returns for ;last 3 years , her bank statement and her appointment letter

3)sin ce court has granted you vsiitation rights for only once a month file an appeal against said order and seek interim reliefs of visitation rights every week

n Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-

"In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted. Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle other spouse with his or her expenditure? Whether such spouse should be permitted to get pendent lite alimony at higher rate from other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing a monetary assistance to such spouse who is incapable of supporting himself or herself inspite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less efforts is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendent lite alimony. The law does not expect the increasing number of such idle persons who by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well qualified woman possessing qualification like M.Sc. M.C M.Ed. Till 1994 she was serving in Gulamnabi AzadEducation College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really put a big question which is to be answered by Mamta Jaiswal with sufficient cogent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and to put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a „dole? to be awarded by her husband who has got a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sit idle and puts his burden on the wife and waits for a ?dole? to be awarded by remaining entangled in litigation. That is also not permissible. The law does not help indolents as well idles so also does not want an army of self made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criteria is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendent lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated to be aim, goal of Section 24. It is indirectly against healthiness of the society. It has enacted for needy persons who in spite of sincere efforts and sufficient effort are unable to support and maintain themselves and are required to fight out the litigation jeopardizing their hard earned income by toiling working hours

E COURT OF MS. MADHU JAIN

ADDL. DISTRICT JUDGE

ROHINI COURT : DELHI

M No. 28/07

Sh. Neeraj Aggarwal – Petitioner

Vs.

Mrs. Veeka Aggarwal – Respondent

ORDER

1.. This is an order on application under Section 24 of Hindu Marriage Act filed by the applicant/ wife, respondent in the main case (hereinafter referred to as the applicant) against the non-applicant/ husband, petitioner in the main case (hereinafter referred to as the non-applicant) for grant of maintenance pendentelite and for litigation expenses.

2.. In the application it is stated that the applicant/ wife has no independent source of income and she is not given any kind of maintenance by the non-applicant/ husband to live her life properly and therefore she is facing much hardship in the life. The non-applicant/ husband has flatly refused to maintain her. The non-applicant/ husband is working in a private sector as a Senior Software Engineer HPC in STM Microelectronics Pvt. Ltd., Plot No.1 A, Knowledge Park-2 (near LG Gol Chakkar), Greater Noida and is earning about Rs. 80,000/-pm. He has no other liability and he is not discharging his responsibilities towards the applicant/ wife with ulterior motives to harass and humiliate the applicant/ wife. The applicant/ wife is the legally wedded wife of the non-applicant/ husband and, thus, being a husband, he is bound to maintain the applicant/ wife. The applicant/ wife is fully dependent on the mercy of her parents, who are having other liabilities also and she has no independent source of income to maintain herself. It is, therefore, prayed that the non-applicant/ husband be directed to pay a sum of Rs. 30,000/-pm as maintenance allowance pendentelite to the applicant/ wife and expenses of proceedings.

3.. The application has been contested by the non-applicant/ husband, who in his reply has stated that the applicant/wife is a well qualified graduate Engineer in the field of information Technology and just after the marriage she had joined the service of a private firm and was drawing a handsome salary as initially she was taking Rs. 5000/-pm. Now-a-days she is competent and qualified to earn thousands of rupees per month. She is a qualified trained engineer and she is self stand financially in all respects. The non-applicant/ husband has never neglected or refused to maintain her in any manner and she was duly maintained during her stay in her matrimonial home. The non-applicant/ husband is still ready and willing to provide financial assistance or maintenance if required or needed by her for any purpose in any manner. It is not denied that the non-applicant/ husband is also a qualified engineer and is employed in Greater Noida, U.P. but the actual amount of monthly salary being drawn by him is Rs. 45,000/-pm. It is stated that he has to maintain his retired father and ailing, diabetic mother and old grandmother and also to treat his two married sisters and to look-after his younger unmarried under-education sister of marriageable age as his younger sister is doing B.Ed. from a regular college. He is also paying loan premiums and other household expenses. The applicant/ wife has herself deserted her matrimonial home without any threats or atrocities caused to her by her in-laws and she is not returning to her matrimonial home despite the petition for restitution of conjugal rights filed by the non-applicant/ husband. It is stated that the non-applicant/ husband is publicly and openly as well as warmly welcoming the applicant/ wife to her matrimonial home but she has started demanding maintenance sitting in her parental home to feed her greedy parents and selfish relatives instead of returning to her matrimonial home and to assist the non-applicant/ husband and her other in-laws in her matrimonial home at the time of need. It is stated that the conduct, attitude and nature of the applicant/ wife is of such type that she is not entitled for any maintenance. Further more, she has also filed a separate petition U/s 125Cr. P.C. for maintenance only with a view to get the non-applicant/ husband harassed in a criminal court. It is stated that the applicant/ wife is not a helpless or poor lady and she is not incapable to maintain herself as she is a well qualified engineer and is already an earning hand. She is handing over all her income to her parents. She does not require any monastery assistance from the non-applicant/ husband as she is already having a good bank balance in State Bank of Bikaner & Jaipur at Rohini, Sector-5,Delhi , bearing A/c No. [deleted] and several other bank accounts also. She also has some immovable properties in her name. It is denied that she requires Rs. 30,000/- as maintenance and other charges as prayed. It is, therefore, prayed that the application be dismissed with heavy cost.

4.. I have heard the Ld. Counsel for both the parties and have carefully perused the record.

5.. During the course of arguments it has not been denied by the Counsel for the applicant/ wife that the applicant/ wife herself is an engineer graduate in the field of Information Technology. Ld. Counsel for the applicant/ wife submitted that the applicant/ wife submitted that the applicant/ wife joined the job for some time after the marriage but thereafter due to the marital disputes she is not in a position to pursue her job and has left the same. In her entire application the applicant/ wife has no where stated that she is also an engineer graduate in the field of Information Technology and that she also joined the job after her marriage. Those seeking justice and equity from the Court must come to the court with clean hands. It seems that for obvious reasons and to extract money the applicant/ wife has not disclosed her true qualifications in the Court. The applicant/ wife is an engineer graduate and, therefore, can very well maintain herself and there is no need for her to depend upon the mercy of her parents or on the non-applicant/ husband. The purpose of Section 24 of H.M. Act is not to extract money from the other party and the court should not be a forum to extract the money or to blackmail the other party. In II (2000) DMC 170 titled as Mamta Jaiswal Vs. Rajesh Jaiswal, the Hon’ble Madhya Pradesh High Court has observed as under:-

“Section 24 – Pendente Lite Alimony : Purpose of Enactment : Not meant for supporting idle (Qualified) spouses waiting for ‘Dole’ to be Awarded by her husband – Section 24 has been enacted for purpose of providing monetary assistance to such spouse who is incapable of supporting himself/ herself in spite of sincere efforts – Spouse well qualified to get service immediately with less efforts is not expected to remain idle to squeeze out his/her purse by cut in nature of pendent elite alimony – Wife well qualified woman possessing qualification like M.Sc., M.C. M.Ed – How can such a lady remain without service – lady who is fighting matrimonial petition filed for divorce, cannot be permitted to sit idle and put her burden on husband for demanding – pendente lite alimony from him during pendency of matrimonial petition.”

6.. In I (2001) DMC 19 titled Sangitaben Rasiklal Jaiswal Vs. Sanjay Kumar Ratilal Jaiswal, Mehsana, the Hon’ble Gujarat High Court has held that the wife is entitled for Free Legal Aid and therefore, the Court should keep in mind that wife is entitled for free legal services also.

7.. In the present case the applicant/ wife is a well qualified engineer and, therefore, there is no need for her to sit idle at home waiting for the maintenance from the non-applicant/ husband. In the peculiar facts and circumstances of the case since the applicant/ wife is well qualified and, therefore, can earn handsome amount by working and there is no need for her to be financially dependent upon her parents or on the non-applicant/ husband, she is not entitled for any maintenance. While hearing arguments on the application it was ordered that the maintenance shall be granted to the wife till the disposal of the petition. This sentence in order sheet dated 27.08.2007 only means that the wife is entitled for the maintenance from the date of filing of the application till the disposal of the main petition and not thereafter. It no where reflects that the wife shall be entitled to maintenance I every case come what may.

8.. Therefore, in view of the above said discussion, the application U/s 24 Hindu Marriage Act of the applicant/ wife is dismissed. There shall be no orders as to cost. File be consigned to Record Room.

Announced in Open Court

Dated : 19.09.2007

mother is the natural guardian of the child up to the age of 5 years because naturally child is dependent upon mother for natural care. but this law has an exception i.e. if mother is being irresponsible towards care of the child then custody shall be given to the father. you may file an application under G&W act for his custody if above exception is existed.

1. You have to file separate suit for custody to get him for ever.

2. If you could establish her income then you are not liable to make any maintenance to her.

3. In meantime you can also pay for modification of visitation order as visitation once in a month is too small for a father to pass time with his child.

Until the court decides about the custody of the child you may have to pay the interim maintenance to the child as per court direction.

However if you are aggrieved by the order of court over the maintenance to the child then you can take up a revision before the higher court seeking to set aside the court order for maintenance in view of your desire to take the child itself under your custody and will maintain it fully on your own without expecting anything from her.

You can make use of recent Bombay high court judgment which is in your favor give below:

ex parte divorce to husband -set aside-cost imposed-both spouse has to share maintenance to child -

The wife is running a business as a beautician. Therefore, she has also to contribute to the expenditure incurred on education and maintenance of the children.

Bombay High Court

Kiran Hiralal Popat vs Suhasini @ Swati Kiran Popat on 16 November, 2016

Bench: A.S. Oka

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE SIDE JURISDICTION

FAMILY COURT APPEAL NO.66 OF 2008

ALONG WITH

FAMILY COURT APPEAL NO.136 OF 2008.

1) in your affidavit in reply enclose evidence of wife income , since wife is earning more than you court would not award her maintenance

2) however you will have e to pay for child maintenance

3) seek joint custody the child

4) appeal against court order giving you visitation rights of only 2 hours in a month

5) gather evidence that wife is staying in Dombivali

6) visit the premises which wife claims to have taken on leave and license in Mahim as to whether wife is staying there or not

1. Yes, you can challenge the said petition for shifting the case to Bandra court challenging her leave and license agreement for taking up a premises at Mahim address.

2. Engage a detective agency to collect evidence that she actually stays at Dombivli and not at Mahim.

3. If you fail to get favorable order from the High Court you can challenge the said adverse order before the Supreme Court.

Also my wife is earning75k per month which is more than my income and she has applied for interim money of 5ok for her and child. how should i fight to avoid the maintainance as she is highly qualified, also i am asking to get custody of child so that i will maintain him and in return i dont want a single penny from my wife...... plz guide as me and my son are very much attached to each other.

Since your wife is employed and drawing a handsome salary, she cannot become eligible for seeking maintenance for herself, however as far as the child's maintenance, she has to contribute half of the amount what she seeks from you towards the child's maintenance since she is drawing more salary than you.

You have to prove her income with documentary evidences before the court where she seeks maintenance.

Though, maintenance laws, in current times, treat men and women on equal footing, it is still evident that the disadvantaged working women gain from these provisions.

If you are aggrieved over the decision of high court Mumbai on the transfer of divorce case, you may very well prefer an appeal against it before supreme court.

You can oppose transfer application

2) take plea that wife can avail video conferencing facilities

3) her personal presence is not necessary in court on each date

4) as far as visitation rights for child is concerned since child is not in India at present court cannot grant you custody for one day

1. First find out how has she gone to Sweden for 6 months. Is it on official tour? If yes, then is her said project fixed for 6 months only or for more period?

2. Apply before the Court for directing your wife to return to India with your child who has been taken away from you to abroad without even informing you.

3. If High Court fails to pass suitable direction in your favour you shall have to approach the supreme court to bring your child back to India and also for the transfer matter.

What to do now i am very depressed that though i have orders to meet him i cannot for 6 months? plz guide me well... is it not a contempt of court.

She has taken permission from court to fly abroad hence it cannot be considered as contempt of court.

You should have recorded objections to her petition seeking to travel abroad on the basis of visitation rights already granted to you, but you failed to utilise the opportunity hence now you cannot do anything about it until she returns.

plz help me.should i go to supreme court if i lose in high court the transfer matter?

Even if you aproach supreme court you will get the same type of casual reply becasue she has traveled abroad with the permission of court and if the child is not available physically even the court cannot pass any order as prayed by you.