Hello! I am a 38 years old small scale businessman from Kolkata. I am married for 11 years (after courtship of almost 10 years). We have a 6+ years old son. Six months back, my wife went to her parental house (after her mother's sudden demise) and then decided not to come back to our home. Our son is staying with her. We both live in the same town (1 km distance). My wife is a homemaker. I have tried every possible way to request her to come back and resume our marital life. I even asked her to stay with me in a seperate home for the sake of our son's peaceful childhood. Even my parents begged her, but all in vain. But she has denied all our requests, nor has she given any rational explanation for her action. She has taken all her possessions (gold, furniture etc.) from our home already. In the meantime, after lots of requests, she permitted me to meet my son for 15/20 minutes on some days outside her paternal home. At present, she is even trying to stop that brief meeting with my son. I am absolutely helpless and don't know what to do next. Considering the age of my son, is it possible that I get his custody if I file for one? My wife is threatening me of committing suicide if I try to spend more time with my son than she deems fit. I would be really grateful if you can kindly show me a way.
You can file a child custody case under G and W act seeking child custody stating that the child's health and education will be ruined if it continues to remain with the mother who is a homemaker and doesn't have sufficient sources of income to sustain her own expenses.
You can also file a visitation rights petition to visit your child periodically as an interim relief in the same case.
File petition in family court seeking joint custody of your son
welfare of child is paramount consideration and court should grant you joint custody
Try to take to her for counselling because her conduct is inexplicable.
Since the situation has not taken serious turn so far as legal complications are concerned, initiating litigation will not help you either.
- As per Supreme Court judgment, wife is expected to move in with the relatives of their husbands, follow the rules and customs of their home, and ideally, blend in seamlessly as a new daughter.
- Further, the court granted divorce to a man on the grounds of “cruelty” after his wife refused to share a home with her in-laws.
- Further, If wife is not supporting her husband for the enjoyment of life and denying relation, then the husband can get divorce after filing a divorce petition before the court on this ground.
Further, As per Delhi High Court, physical intimacy is an essential aspect of marriage and a wife's continuous refusal to have such relationship with her husband can be a ground for divorce,
- If she is not interested to live with you, then try to take her consent for mutual divorce.
- If, she not agrees for mutual divorce, then file a divorce petition on the above mentioned grounds.
- Since, she has left you and threatening for suicide, then for your safeguards, you can lodged a complaint before the police and higher official, as an information, after mentioning the details and also for threatening to commit suicide if meets child.
- Further, under the Guardian and Ward Act, , the welfare of the child as the paramount importance, like ethical upbringing of the child, Safe-keeping of the child, Good education , and economic well-being of the guardian.
- Since, she is homemaker then you are entitled to get custody of the child
Thank you so much for your responses. I have proposed counselling to her. But she has simply turned down the request. Her father and brother, who have extreme emotional influence on her, are homeopathic doctors and she is under their treatment since childhood. In this scenario, kindly suggest - 1. My home, my wife's parental home, and my son's school are all within the radius of 1 km of the village. Also, since the birth of our child, I have customised my work schedule in such a way that I can invest most of my time in his proper upbringing. In this setup, if I file a petition for custody, as an interim relief, maximum to what extent can I be allowed to visit my child? 2. Since my wife left our house without even apprising us of her intention, since then I have tried every possible way to bring her back (sending letters, trying to request through calls and texting, going to her house almost everyday to make her understand, trying to reach out to her relatives, mediation by common friends). In this situation, if she claims money from me as wife maintenance, is there any possibility for me to get relief? I am already paying for my son's education.
1. You have equal right over child , and there is possibility to get permanent custody of the child as well.
2. You should file a petition for restitution of conjugal rights to direct her to join the matrimonial life with you.
- If court pass order in your favor then she cannot get any maintenance from you.
You can contact me , if further suggestions needed.
You can get visitation rights of once a week
2) wife can seek maintenance from you if she is not working
1. The circumstances properly explained and if the court is convinced about your prayer for child custody the court may then pass an order as it feels proper to the circumstance.
2. As a husband you are liable to provide maintenance your unemployed wife, hence whether she abandons the matrimonial home or for any other reason, then also you are liable to pay her maintenance
Child's preference shall be taken into consideration.
Just six years old, you may get visitation.
Even if she threatens suicide for initiating court proceedings, you will not be liable for instigation
File a case for custody and get visitation rights at least to start with.
G.Rajaganapathy
Advocate,
High Court of Madras.
Dear Client,
Given the age of your son, courts generally prefer to keep children, especially young ones, with their mother, unless there are compelling reasons not to do so. However, as the father, you have the right to seek custody and visitation. The welfare of the child is the paramount consideration in custody cases. For visitation rights, you can file a petition for interim relief to ensure regular visitation rights. Given the close proximity of your homes, the court might grant you regular visitation or even shared custody, where your son can spend time with both parents. The court can also grant you overnight stays or weekend visits, depending on the specific circumstances and the child's best interests. As far as the maintenance of your wife and child is concerned, under Section 125 of the Criminal Procedure Code (CrPC), your wife can claim maintenance if she is unable to maintain herself. However, you may argue that she has voluntarily left the matrimonial home without sufficient reason and that you have made multiple efforts to reconcile and bring her back. This could influence the court's decision on granting maintenance. As a father, you are legally obligated to provide for your child's education and general well-being. This includes financial support, which you are already providing. Keeping documented records of your attempts to reconcile with your wife and financial contributions towards your son's education and other expenses might help you in your case for custody of the child. Further, a family law attorney can guide you through the process of filing for custody and securing visitation rights. Should you require any further clarification, please do not hesitate to contact us.
You can counter the maintenance on possible grounds and refuse to pay
