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shree (HR)     07 December 2012

Divorce & custody of 9 years old boy

Hello 

Here i am writing on behalf of my elder sister who wants get divorce with the custody of her 9 years old boy. as per the divorce is concern  her husbend has no problem but he  claim the custody of the child.

They were married in the year of 2000 and got the child in the year of 2003, they were never happy with each other, they fight, infect her husband has bitten her several times, my sister chose to tolerate all these initially, infact she toke her husband to a psychologist/ marraige consultant too but he never change.

  in the year of 2004 he again bit her badly, she was affired and she from then onwards my sister don't stay with her husband . unfortunately she don't have any prove of these things, (like police report or dr. report) except those bad and horrible memories.

she come out with her 1 yesr old child. they were not communicating with each other and  she was decided to take divorce but  may be after 2 years again they start communicating with each other my sister again give another chance to the marriage.. but she never get the confident to go back to hooghly to stay her husband and inlaws.

she stay with her son at kolkata and her husband stay in hooghly, they visit each other place for 1 day in a month or 2 month..she has tried and give several chance to the marriage but even after 12 years of marriage it  doesn't work out. for the last 9 years she is the only parent who take care of her son alone though her husband used to give some monthly expence for his maintenance and that's the only things he do as a husband and a father. but he never takes any responcibility of the boy or my sister.

now she has decided to come out from these bad marriage and he got no problem with that but the problem ariese with the custody of the child. as the child is 9 years old, and for him his mother and father both are important and loveable. we cant disclose him what his father did .., presently my sister is working as a teacher and she has enough financial support from the parent side to take care of her son. she want to comeout from this relation but with the custody of the child.

please guide us how should we process the divorce case.

can her husband claim the custody of the child , where the child  stay with her mother for the last 8 years, and his father only visit him once a month?

if his father fill a case for the custody of child will the fact that he used to gave same monthly expense can be used in his favor?

over all whats the marit of the case ? my sister is not ready to take any kind of risk regarding the custody of the child.



Learning

 7 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     07 December 2012

Dear Querist,

The Marriage has most apparently irretrievably broken down without any chances of repair. Mutual Consent would otherwise have been best, but husband and wife are not on the same page as regards custody hence it is ruled out. Long desertion + cruelty would be ground for divorce. Custody in all probability under these circumstances should go to the mother. Father would have visitation rights.

 

Bharat Chugh

www.advocatebharatchugh.wordpress.com

shree (HR)     07 December 2012

Thanks for your response sir,

As u said Long desertion + cruelty would be the ground , but here we dont have any written prove like dr.'s  reports of being bitten or any police report regarding those activities.. will the court  accept my sister words, or our evidence .. its a fact that her husband was guilty but truly speking its some how our fault also we should not tolarate all this .. may my sister cant ...but if we take some strong steps then may my sister can leads a better life today...


Well now we dont want to make any kind of mistake so can u just guide me what evidence we can produce before the court for proving cruelty ?

and in case of long desertion... can he said that he offer my sister to stay with him at hooghly at his home??.. which my sister deny due to lack of security..)

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     07 December 2012

It would be unnatural to expect evidences of each fact in a matrimonial case for people normally won't get into collecting evidences and always hope for things to turn for the better. Hence circumstantial evidence is equally good evidence. If your sister had no option but to leave husband's house due to his acts - then as per the law he is the deserter even though he stays in teh same house and your sister physcially leaves it. This is called constructive desertion.


Have a consultation with a seasoned family lawyer !

 

Good Luck 

 

Bharat

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     07 December 2012

Dear Querist

no need to worry,

if your sister has dicied to divorce/dissolution of this marriage and only willing to custody of her child, there is two option mentioned below:

1. Filed a divorce petition alongwith the application u/s 26 of HIndu Marriage act for custody of child

26. Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such, orders and provisions with respect to the custody, maintenance and education of such children as, might have been made by such decree or interim orders in case the
proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

 

Secondly filed a petition u/s 25 of Gaurdian and wards act, for appointment of Guardian of Minor along with section 12 for interim custody.

Feel free to Call

 

shree (HR)     07 December 2012

Dear Nadeem Qureshi Sir,

Thanks for your response, but would be kind enogth and explain the provision of section 26 of hindu marriage act, which u have mention.

Thanks for your help in advance.

Ramesh (student)     10 December 2012

 

Dear Querist,

The story advanced by you seem to be untrue.9 years separation without taking any mediation or suit or legal recourse is unbelievable. However, if you do not have any proof how will you proceed further. Court of law demand the evidence .Is the opposite party is silent utill now? Are you on behalf of your sister or your parents not tried any effort to settle the differences or whether opposite party not initiated in this direction ? Is the marriage was settled with some mediator ?

There are so many question and without going in- depth in the circumstance if you have decided to take divorce than the safest and speedy process will be Mutual divorce. If both sides are fair particularly bride side and in the situation if you want to save the younger age and days of your sister and if you are not interested in to any kind of alimony it will be very easy and from my experiences it generally delayed only due to quantum of huge alimony which arised due to not co operative of the councils of both sides because their main aim is to prolong the matter so that not lose the Clint in early stage.

One more important point to be remember is that do not involve the council for the discussion and only after arriving at conclusively involve them for drafting the mutual divorce petition at the terms and conditions arrived between the elders of both the side.

Life is very short and if you reaches the opposite party positively with the elders,the favourable result will arrive very soon.

At this stage future of the child is paramount apart from both husband and wife and their families.

GOOD LUCK


Ramesh (student)     10 December 2012

 

Dear Querist,

The story advanced by you seem to be untrue.9 years separation without taking any mediation or suit or legal recourse is unbelievable. However, if you do not have any proof how will you proceed further. Court of law demand the evidence .Is the opposite party is silent utill now? Are you on behalf of your sister or your parents not tried any effort to settle the differences or whether opposite party not initiated in this direction ? Is the marriage was settled with some mediator ?

There are so many question and without going in- depth in the circumstance if you have decided to take divorce than the safest and speedy process will be Mutual divorce. If both sides are fair particularly bride side and in the situation if you want to save the younger age and days of your sister and if you are not interested in to any kind of alimony it will be very easy and from my experiences it generally delayed only due to quantum of huge alimony which arised due to not co operative of the councils of both sides because their main aim is to prolong the matter so that not lose the Clint in early stage.

One more important point to be remember is that do not involve the council for the discussion and only after arriving at conclusively involve them for drafting the mutual divorce petition at the terms and conditions arrived between the elders of both the side.

Life is very short and if you reaches the opposite party positively with the elders,the favourable result will arrive very soon.

At this stage future of the child is paramount apart from both husband and wife and their families.

GOOD LUCK



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