Hello Sir, I got married in 2007, having 8.5yrs old son. I filled divorce case 9 months back (in April). Before that I was continuously approaching (since last ~7yrs) to local panchayat, mahila pramarsh etc as my wife's behavior and actions were really cruel and troublesum towards me. I got separated from my parents within 2 yrs after marriage as she was cruel with my parents too. We were staying as nuclear family since then and now I am staying separated from her since last 6 months (since July) and my son is also staying with me. After 9 months of proceedings, this is first time she came with her response/answer to my case along with Maintanence application.In her response, she has replied that I was having cruel behavior for her however she want to stay with me. Just next day of hearing, she came to my house with cloths beg and said that she will stay at my place. As I don't want to be with her even for a day, I headed to my lawyer asking for the way around. she suggested me to submit an application in area police station. In this case, I am not sure what will be action of local police, I am worried as you know it's india, so easy for girls to create a trap. Another question I have is about child custody, should I ask for custody first or should wait for my wife to turn up in court regarding this. I want to keep child with me. What is the possibility that i will be able to get child custody? Just to add, my wife is a house wife, had two divorce before this marriage and due to her nature, even after staying in her parents city, she hardly get any support by her parents.
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since wife is not working she is entitled to maintenance
2)pending divorce wife has right to stay in her matrimonial home
3) you can offer her alternative accommodation
4) since you have the child custody not necessary for you to make application in this regard
5) let wife make application seeking child custody
Hello,
File a suit for injunction asking the caourt to pass an order to the effect that she be not allowed to enter your house.
Wait for her to file custody case, welfare of child is of paramount importance while deciding such case.
Also, being your wife it is her right to have a stay at your residence, try and finalize the divorce case at the earliest.
Regards
Respected sir..
Ask her to leave your house else you can take legal action against her...You are going in a right direction ..She will not have much option left ..She can only file fake Case's against you but court will decide no need of worry...If you want child be with you ..You have to file child coustdy prior to her and you have to prove that child will be much safe and secure with you as compare to her ...That was not so hard to prove...You can also take ground for her two divorce...
Thanku
1.Though wife has right of residence in the house belonging to the husband ,he can refuse to give her such right as a result of which the wife can seek legal remedy.
2.So if she has not entered into your house you can refuse to let her in.
3.In consequences though she can file case under PWDV Act as well as under section 498A IPC.
4.Both the cases can be contested in merit and once bail is granted in 498A case there is not much to worry about.
1. During the subsistence of marriage a wife has the right to reside in her matrimonial home. This right, if denied to her, is enforceable through proceedings under DV Act. There is nothing police can do in this as it cannot evict her. To evict her from the house you have to file a suit for her eviction in the civil court on the ground that her stay in the house is not conducive to the physical and mental well being of you and the child.
2. Since you already have the custody of child you should not open a pandora's box by filing a petition for child custody. You may instead file a suit for permanent injunction to restrain her from illegally taking the child out of your custody.
A Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment.Maintenance is not merely a legal right. It is part and parcel of basic human right. For weaker sections, it is a problem in the sense that their very survival rest on the maintenance. The object behind the provision is two-fold: firstly, to prevent vagrancy resulting from stained relation between the husband and wife, and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money.
A wife is not entitled to any allowance if she, without sufficient cause, refuses to live with her husband. A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. A well-qualified wife is not entitled to remain as an idle and claim maintenance from her husband
Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.
The Protection of Women from Domestic Violence Act, 2005 provide right to stay in her matrimonial home to wife .So only the other provision is to offer alternative accommodation. Complaint to the police not work properly but can save you from false 498A case in future.
During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.Guardian and wards card are empowered to determine the issue of child custody. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Family law courts generally base decisions on the best interests of the child or children (welfare of children), not always on the best arguments of each parent.
1. Permanent Custody
2. Interim Custody
3. Visitation Right
As lawyer suggested in this case she want to stay with you police is only immediate way out however the RCR petition she can move u/s 9.
The custody of child more than 5 years is vested with the husband in a very strong case it is given to the wife.The maintenance is her right and the quantum will be decided by the court if you do not want to live with her any more.
You should claim custody of a child under the Guardians and wards act. Your wife is reluctant to care her child because she left her matrimonial home without any reasonable cause and also left her child. In this scenario the court will grant custody of child to the father because it is welfare for the child to keep in father's custody. Her abnormal behaviour, two failed marriages, do not pursue the case in the court and being Absent from judicial proceedings for such a long period shall constitute valid ground in favour of you to take custody of a child. You should initiate proceeding for custody of your child because in future your wife can do some unexpected act and claim custody of child only with the intention to harass you.
Just to add here, the time when I got separated in a rented house (in July), I shifted my wife to another rented house and bearing her rent and other expense till date though the maintenance application is filled now by her. I do not have any house of my own, I was/am staying in rented house after getting separated from parents in 2010.
File a detailed reply to maintenance application filed by wife
2) mention that you are already meeting wife expenses and have provided her alternative accommodation
It has been upheld in a couple of judgements that wife cannot forcefully enter the matrimonial house if divorce petition on the grounds of cruelty are pending against her.
Moreover, the Supreme Court has recently held that 'Courts cannot force the husband to keep his wife', as it asked a man to deposit 10lakh as interim maintenance for his estranged wife and upkeep of their son. Thus, as long as you are supporting/maintaining to the extent that she is able to manage a separate accomodation for her, you cannot be forced to keep her with you.
Move an application under section 26 HMA and seek an order as to status quo, so that during pendency of the divorce case, your custody upon your child is not disturbed.
There is no need to get scared, till now divorce is not done so she is your legal wife so she can stay with no one can stop her for that. Just be alert and if find anything suspicious or useful for your case just inform in the police station in a written form. There is someone who is guiding her to torture you in every manner, now she wants to delay the matter by way of misusing the law and procedure.
You can add clause for the custody of the child in the prayer clause. Don't wait for your turn, just make the submissions before the court.
You may file a divorce petition if you are living separate since 2010.
Hi , since your child is not infant therefore you can cliam the custody .. However since you are already having the custody and she is not challenging it , therefore it is advisable not to challenge untill she initiates .. Her past divorce , shows nature of her cruel character , and therefore you will get positive factor in your divorce case
1. Preserve the rent receipts or proof of remittance of rent.
2. You are free to stay separately from her.
She is entitled to live in her matrimonial home till the time she is your legally wedded wife, you canot avoid the situation.
The police cannot interfere in this position of law.
If you do not wan to live with her in that house, you may come outside the house and start living separately leaving her to live alone in that house.
For child custody, since the child is in you custody, if she is interested to get the custody of the child, let she apply for one and you can challenge the same on merits in your side.
The question is that she may be trying to humiliate and torture you intentionally to be with you in the same house forcibly.
She my try to create some problem and get you trapped through false and created cases, hence yo got to be careful about this.
You can shift to some other residence and vacate this house since she has been already arranged with another accommodation in another place.
Her maintenance case should be challenged on merits from your side.
You are required to file a reply to the maintenance petition so filed by your wife, in the reply raise the pre liminary objection that you are already providing the maintenance to your wife and have also provided her with an accommodation.
Regards