Restitution/girl child custody
K Animesh
(Querist) 30 October 2013
This query is : Resolved
Hello,
I am K.Animesh, native of Bihar, settled in Pune for 8 years. Marriage took place in Patna in 2006 and soon after the marriage we had differences due to various reasons. Majorly, she never liked and accepted my family. In Oct 2010 we had a daughter. Soon after this her parents purchased a house in Pune and started living in same society. This followed by their constant interference and her giving attention to her parents and ignoring my likes and dislikes etc. Daily qurall was routine. Some time it resulted in Violence and abuse from both the sides.
Following this she started living with her parents since Jan 2013 and continued till June 2013. During the period I used to meet/ talk to my daughter.
On July 1st after a small fight she again left for her parent’s house and her brother in Law who was visiting Pune, from Lucknow, came and thrashed me and even registered a false case under sec 323 in local police station.
My wife ever since has deserted me and shifted to Lucknow along with her parents and my daughter. I tried to pacify her asked her to come back but she refused even did not allow me to meet or talk to my daughter for last 5 months.
My queries are:-
1. I love my daughter so much, considering that should I file for a restitution of Conjugal rights petition, hoping that she would come back along with my daughter? What are the merits or demerits?
2. I am thinking of filing the case in Patna, since the marriage took place there and we both belong to Bihar and coming to Pune for them would be difficult. However we both lastly resided in Pune for last 7-8 years and her father has his own house also in Pune. So what is advisable, filing the case in Patna or Pune? Can the case be transferred to Lucknow, considering they do not have any connection except her brother in Law, just to add, she is working currently there.
3. If she refuses to come back, what are the chances of my daughter's custody, considering they used the child as Pawn, disappeared from Pune without any consent or information and not allowing me to meet my daughter for 5 months, wife is currently working, weak financially, dependent on her ailing parents and daughter is residing in a compromising condition. I can even opt for work from home and devote more time for my daughter, my daughter and my relationship is like of a mother and a daughter. I love her so much. She just turned 3 years of age.
4. How much time does this type of proceeding take in India, usually?
5. If One can suggest a good lawyer in Pune for representing my case, who charges reasonably?
prabhakar singh
(Expert) 30 October 2013
You would not get custody but only visitation right is the possibility.
A RCR case can be filed but hard to
predict what would be the reaction(may be 498a)?
and may not be.!
When she is in job at lucknow
she may insist jurisdiction there in the name of convenience to her then ,if you decide to file,
chose PUNE,not PATANA,and
let her decide where she wants it.
You may in your choice visit profile of Mr.PALNITKAR V.V. who is currently shown at serial no.34,he is at
Pune(and do not care about serial here that is not true rating as i am not among India's top 3rd lawyer).
K Animesh
(Querist) 30 October 2013
Dear Sir,
Thank you for your advice.
As I understand it, if I go for Pune, and they challenge it, I will say we have lived all our life in Pune after marriage and her father has his own house and they have their relatives and friends in Pune. If they insist on Lucknow for convenience etc. then can I say that since both our families belong to Patna and I would also need support and guidance of my relatives in Patna, it’s better for both of us to get this transferred to Patna, not Lucknow, as its difficult for my relatives as well as me to go to Lucknow and fight the case, will this argument work with Supreme court? Does Supreme Court easily transfer cases in favor of women?
In case, if they file 498 A etc, will that not show that they are doing it in revenge and will it not be difficult for them to prove the case as she has not been residing with me for last 1 year almost and completely deserted me for last 5 months. Also all my society members saw his brother in law creating nuisance in my house. Marriage is 8 years old.
Even if they file 498A etc. where can they file, in Lucknow or Pune as she lastly resided in Pune with me?
As far as custody is concerned, I know it’s difficult, but will the court not consider that she has fled and disappeared from Pune and did not establish any contact. I tried my level best to call her back and even today I want her to come back and want to raise the child jointly. But she has even stopped me to even talk to her let aside meet my child and run away after dropping her form school. Considering, my daughter is always happy in my custody and I have also raised her like a mother. She leaves my child at the mercy of her sister at lucknow who herself has her own house-sons, husband-in laws and now her own father and mother- to take care of. Considering that my child is not given proper attention and she is deprived of even going to a play school. There is no social, mental, financial, safety and legal ground, why she should not come back to me, while I may devote more time to her-my job permits me to do so and my sister and mother stay with me and my daughter is very happy in their presence.
ajay sethi
(Expert) 30 October 2013
if you file in patna and your wife makes application for transfer of case to Lucknow SC will transfer the case to Lucknow . th convenience of the wife is taken into account as she would have to travel long distances and she has young daughter to look after
court generally awards custody of child to mother . welfare of child is paramount consideration .
contact a local lawyer in Pune . dont file for RCR
K Animesh
(Querist) 30 October 2013
Thanks Sir,
So Should I file for Divorce instead of RCR? Will that not send a harsh signal? Anyway Laws in India is alwys bending towards women.
Adv Jaydeep A Tanna
(Expert) 30 October 2013
After reading content-
1) I would appreciate your drafting content are clear-
2) Before filing RCR have you give written legal notice to wife to return back matrimony home, the reply of your wife will give some intention of your wife which would be helpful in court.
3) Thereafter you can file RCR you can file at Pune or Patna, let her make transfer of case that is not your question. Jurisdiction of Court is Pune last resided & Marriage place at Pune.
4) If you file case at Lucknow it would be best there would no need of transfer of case as she is residing at Lucknow but court do not have jurisdiction it will depend on lawyer.
5) If you file RCR on other hand respondent can file for Divorce both the case will have hearing simultaneously.
6) Both have applied for Decree
1) RCR - return to matrimony home
2) Divorce - end of Marriage
7) If you file RCR and she goes for hearing and denied with the ground available for wife then you would not obtained decree of RCR than court may give her opportunity for Divorce that is only Demerit of RCR.
Now Custody of Child -
a) Mother will be entitled of custody till age of 5 yrs and further also.
b)You have to make application under Guardian Ward to Court for Custody of Child but you might not get custody. but you can file Visiting of child that order will be granted on your favor for visiting daughter.
c) Custody is not permanent , court will check were child will get best welfare.
Wife-
a) Wife can file for maintenance u/s -125 for daughter as well herself also
b) Divorce she is entitled 50% property of Husband and even ancestral property also.
Adv Jaydeep A Tanna
(Expert) 30 October 2013
3) Thereafter you can file RCR you can file at Pune or Patna, let her make transfer of case that is not your question. Jurisdiction of Court is Pune last resided & Marriage place at Patna.(MISTAKE)
R.K Nanda
(Expert) 30 October 2013
nothing more to add.
K Animesh
(Querist) 04 November 2013
Thank you so much for your advice. After much thought, I have taken help of one of our family friends, and trying best to console my wife and requesting her to come back for future of my child. What precaution should I take considering the fact she has registered two complaints in my name, though it was under sec 323 and her family members continuous interference.
Adv Jaydeep A Tanna
(Expert) 05 November 2013
Sir,
You have taken right step by taking help of family friend-
1) Do not say that for child future, but tell her we are bound with marriage, there is quarrel between in every husband and wife ( they do not enter in last step of marriage ) but we have to understand our problem and bring some proper solution.
2) We have to be re-union and resolve our problem, as prestige in society of both family, we will have to cool down, the ego and anger has converted our marriage to verus.
3) We have to think of both family, child,who will suffer most, marriage bound,( which we have promised while taking 7 marriage steps )we are matured enough person to understand our problem and resolve it.
4) WE both are one who ever win, it is we have won, so one has to take cool down even one of the partner is wrong so why you do that role, later stage you will get opportunity to tell her about her wrong by lovingly.
5)Marriage can run for long period of time when one of the partner is matured.
6) Now IPC section 323 voluntarily causing hurt, please do not cause any hurting incidence to women it is sufficient ground not to reside or continue with you, so do not take such step when you are in anger.
7) If her family member is involve, that mean she is not having confidence on you so first take her in confident, she will share with you all event.
I am very much sure your problem will resolve, as you have involve family friend
K Animesh
(Querist) 05 November 2013
Thanks so much Mr Thanna, for your kind advice. I will follow what you have mentioned, also do you advice some legal steps, I mean some kind of agreement or any mutual understanding clauses so that she does not simply run away with my child in future like she did in past or any other suggestion which might give me relief in case of any misunderstanding. Though I make sure I will not hurt her physically or otherwise, but you never know what might influence her as she is highly influenced by her parents and her brother in law.
Rajendra K Goyal
(Expert) 05 November 2013
For criminal complaint which may be lodged in future, I doubt any paper agreement of today would work.
However She should withdraw the present cases.
Adv Jaydeep A Tanna
(Expert) 05 November 2013
After reading-
1) Please write name correctly it is "Tanna" and not "Thanna"
2) If you make any such agreement that mean you do not have any faith on her, means this marriage will not last long when there is no faith.
3) I have told you what role you have to play, such agreement will bring ego between you, and none of will step down and it will become verus.
4) Due to the child only husband has to bear with wife because wife has upper hand in legal part & child custody remain with wife but at latter stage you can tell her about wrong done by him when proper time come in your position.
5) They can make agreement because they are sending daughter to your place and you will have to agree for her safety.
6) Relief you will get when she will have confidence on you otherwise marriage will not run for long period.
7) I think you will have to play anchor role and you can do.
8) My advice is you communicated with all influenced person of your wife and she will gain confidence with you, this only will resolve your problem forever.
ajay sethi
(Expert) 05 November 2013
visit a marriage counsellor . try to resolve all misunderstandings . request wife to with draw the cases filed by her .
K Animesh
(Querist) 05 November 2013
Dear All, Thanks a ton for all kind advice,I will surely inform, once they are back. Thanks once again.
K Animesh
(Querist) 02 January 2014
Hello Sirs,Finally my wife has agreed to come back. But her parents suggested her to come back after some "Legal Formalities" to secure her safety.
As I understand we may approach a court/magistrate if we are seeking some relief. Here in my case I myself have taken initiate and tried to come to a common understanding.
Kindly suggest, what kind of "Legal Aids" are available under Indian Laws.(Post Nuptial Agreement or Some Petition to be filed in Family court)
Thanks-Animesh
Adv Jaydeep A Tanna
(Expert) 03 January 2014
This contract happens after marriage between those who are still married and either are contemplating separation or divorce or simply want to protect themselves for the unexpected in the future, A post-nuptial agreement, although it seems unromantic, can actually help couples struggling with financial differences to keep their marriage intact, an attorney focused in family law and trained in collaborative law.
The first step is to find legal representation that is well versed in family law.
Next, you and your husband or wife need to consider and assess all your assets – separate and shared – and finances to determine what you would have to separate or stipulate in the post-nuptial agreement. One of the first things you will decide is what kind of support, if any, you will provide to one another if you are to separate, which legally means that you would no longer be acting and behaving as married people, For example, you could write in the post-nuptial agreement that no one would get spousal support if you were to ever separate.
Adv Jaydeep A Tanna
(Expert) 03 January 2014
Legal Aid- Advocate will draft a clause of Agreement which will be signed by both spouse with witness.
Both will disclosed their property & separate property.
How finical will utilized for child & spouse.
Further if marriage comes to end than how it can be proceed.
Post Nuptial Agreement Wife is benefited
Adv Jaydeep A Tanna
(Expert) 03 January 2014
Legal Aid- Advocate will draft a clause of Agreement which will be signed by both spouse with witness.
Both will disclosed their property & separate property.
How finical will utilized for child & spouse.
Further if marriage comes to end than how it can be proceed.
Post Nuptial Agreement Wife is benefited
K Animesh
(Querist) 18 March 2014
Hi,
I and my wife want to file a divorce petition mutually.
1. However I want one surety form her that she will never try to separate my daughter from me i.e. she will never leave the current city of residence without my consent. Can this clause be legally covered? She has in past taken my daughter to her parents place without informing me and kept me away from my daughter for 6 months.
2. We have a common property, i.e. a flat owned by us jointly to which she has done a release deed in past and readily disowned the property in 2010. That release deed was not registered but was executed on a Rs. 200 Stamp Paper in Pune, Maharashtra. This release deed later became a part of Housing Loan and subsequently that Loan was closed and transferred to another Bank, however the release deed does not mention any clause as such “this deed is done for purpose of rendering this loan etc."
2.1 Question is if she is not ready to register the property solely in my name, will I be able to register the said property solely in my name alone on the basis of the said deed?
2.2 Or mare mention of a clause that she will never claim anything in that property or anything else in lieu of this property in the separation clause would suffice in order to rescind her to claim anything in future in the said property?
2.3 Would I be able to sell/rent the property without any issue?
3. Can I become a Legal guardian and she became custodian of my child i.e. all matters related to my child such as her education, schooling etc. cannot be decided without my consent. She can’t take her away from me and decided whatever she wishes without my consent?
4. Apart from Maintenance, Property, Child custody, Child's vacations etc. what else must be considered there in a separation clause?
5. Once we prepare the separation clause, what procedures are required for filing the petition in a court? Can I file it by myself?
Thanks and Regards-
Animesh
K Animesh
(Querist) 19 March 2014
Hello Sirs, After spending 1 month together, it seems impossible to continue.
I and my wife want to file a divorce petition mutually.
1. However I want one surety form her that she will never try to separate my daughter from me i.e. she will never leave the current city of residence without my consent. Can this clause be legally covered? She has in past taken my daughter to her parents place without informing me and kept me away from my daughter for 6 months.
2. We have a common property, i.e. a flat owned by us jointly to which she has done a release deed in past and readily disowned the property in 2010. That release deed was not registered but was executed on a Rs. 200 Stamp Paper in Pune, Maharashtra. This release deed later became a part of Housing Loan and subsequently that Loan was closed and transferred to another Bank, however the release deed does not mention any clause as such “this deed is done for purpose of rendering this loan etc."
2.1 Question is if she is not ready to register the property solely in my name, will I be able to register the said property solely in my name alone on the basis of the said deed?
2.2 Or mare mention of a clause that she will never claim anything in that property or anything else in lieu of this property in the separation clause would suffice in order to rescind her to claim anything in future in the said property?
2.3 Would I be able to sell/rent the property without any issue?
3. Can I become a Legal guardian and she became custodian of my child i.e. all matters related to my child such as her education, schooling etc. cannot be decided without my consent. She can’t take her away from me and decided whatever she wishes without my consent?
4. Apart from Maintenance, Property, Child custody, Child's vacations etc. what else must be considered there in a separation clause?
5. Once we prepare the separation clause, what procedures are required for filing the petition in a court? Can I file it by myself?
Thanks and Regards-
Animesh
