Manu1234 (xyz) 03 November 2012

Child custody from abusive husband

Hello dear Experts,

This is regarding my sister. She got married to an advocate around 6yrsago and the problems started within 2 months. Within next few months she was pregnant so we couldn't think of separating, just like any other middle class family. Now she has 2 sons of age 5yrs and 3yrs. Now we are very much afraid of thinking separation because of the child custody.

Problems:

1. Her husband and his family have been very abusive which is physical sometime. He has slapped her few times.

2. He has taken money from us few times. One instance was he cheated someone after selling something as a mediator but he did not give money to them. Somehow we also got involved in that and he asked us to pay the money to them. We gave the money and took it in writing from them on a stamp paper that they have been paid money by us on my Bro-in-law's behalf. He never gave that money and we never dared to ask.

3. Around 4 yrs ago he came to our home and asked for money. We gave him, but we do not have any proof for that.

4. He has taken loan against my sister's gold jewellery.

5. One of her gold jewellery went missing from their home when my sister was visiting us; he never worried to find out that.

6. He did not come to visit my sister or their first son for 3 months after delivery.

7. He is very suspicious. Whenever we make phone call, he puts the mobile on speaker phone and sits next to my sister and listens entire conversation.

Around 4yrs ago the abuse was intolerable so my sister came back to our home and stayed with us for 7 months. But later when they came and requested we sent her. After that my bro-in-law’s younger brother got married and his wife left him within a year because of the abuse. (I think the divorce is in progress)

Now that she is unable to bear the abuse, she is thinking of separating but afraid of following things:

1. Who would get the child custody? Can she keep both the sons with her if she decides separate?

2. Her elder son is staying with my parents since last 2 yrs for education. What if he takes that child from the school and hides somewhere?

3. My BIL and his mother are very abusive. They come to my home which is in a small village and start shouting from outside. My father and mother stay there with my sister’s elder son; I stay in a different city which is far away from my native. My father is a heart patient and hypertensive and is on medication. Is there any way legally we can stop them from coming to our home.

He never shared his financial conditions with my sister so we are not sure but looks like he has good wealth. Our financial condition is good though I am the lone earner in the family.

We don’t want to hurt them socially or their feelings but we definitely want the abuse to stop and want to go ahead with separation. Please provide your expert opinion.

Thanks in advance.

Reply Follow

10 Replies

Sanjeev (Lawyer) 03 November 2012

have you thought of future of your sister and her children after divorce. Are you willing to take care of her needs throughout life or you may get busy with your own life and forget her problems and needs.

things may change and may be he improves later. Only think of seperation if you think the life is miserable there and no chance of improvement and you can provide a better environment and life to her after thinking of childs future.

Manu1234 (xyz) 03 November 2012

ok, she is a well educated and qualified to get a good job easily. Also at the present condition, we pay the school fees of my nephew and most of the requirements. Apart from this I have started saving for them since a year, my father has kept some FDs. I also have taken medical policy for her family. We have a family property also (some farm land). So taking care of her is not at all a problem. My wife also understands the problem and supports.

My sister is leaving life like a housemaid without love and affection from anyone in their family.

To give you one more example, nobody in their village visits their home not even their neighbours. Because they (in-laws) believe people do blackmagic on them! They have strained relationship with their relatives.

I am more concerned about the questions I asked in the original post. Thank you.

Sameer Virmani (ERP Consultant) 03 November 2012

Hi Manu Even my sister has almost same problem,My sister too wants to separate please do share your experience and probably we can make something to happen

Adv. Chandrasekhar (Advocate) 05 November 2012

Originally posted by : Manu1234

1. Who would get the child custody? Can she keep both the sons with her if she decides separate?

The welfare of the child is the paramount consideration for the courts while granting custodial rights to the parent. the narration shows that they are money minded and have not bothered about the elder child, who is living for the last two years in maternal grand parent's house, your sister has brighter chances of getting the custodial rights. He may fight the custodial rights case only for the purpose of extorting as much money as possible from your sister for giving his "no objection" for children custody. Normally, the mother gets the custody of the child till he is five. After the age of 5 also, the father does not get custody automatically. He has to show that the children welfare is lying when they live with him. After going through the facts explained by you, I see brighter chances to your sister to get cusody. So, my suggestion is that do not push your sister further in that hell worrying about the children custody. Go ahead and seek appropriate remedy depending upon the needs of your sister to protect her from further physical, mental and economic abuse.

2. Her elder son is staying with my parents since last 2 yrs for education. What if he takes that child from the school and hides somewhere?

Under domestic violence Act, you have got appropriate remedy to protect the child from abduction by them from the school by obtaining protection orders. In civil law also there is remedy for this grievance, but it is time consuming.

3. My BIL and his mother are very abusive. They come to my home which is in a small village and start shouting from outside. My father and mother stay there with my sister’s elder son; I stay in a different city which is far away from my native. My father is a heart patient and hypertensive and is on medication. Is there any way legally we can stop them from coming to our home.

As said above, your sister can get protection orders from her husband and mother-in-law under Domestic Violence Act by filing DV case.

He never shared his financial conditions with my sister so we are not sure but looks like he has good wealth. Our financial condition is good though I am the lone earner in the family.

Till your sister gets job, if she is staying separately from her husband she has got the right to seek maintenance for her and the children. But in custody case, she has to show that she is capable of meeting the expenses of growing up children for getting custody, irrespecitive of the fact that she will get maintenance for the children from the father.

We don’t want to hurt them socially or their feelings but we definitely want the abuse to stop and want to go ahead with separation. Please provide your expert opinion.

I do not know what you mean "separation". Whether it is just staying separately without moving for any relief under Marriage Act, or seeking "judicial separation" or "divorce". You can opt for any one of them that suits your sister. But you have to resort to DV case for getting protection of the child staying with your parents and if necessary for maintenance and also restraining them to come to your village and denigrate all your family members before the entire village.

Thanks in advance.

Manu1234 (xyz) 06 November 2012

Thank you Sir for your detailed reply and suggestions.

Since we do not have any proofs of verbal abuse (and physical abuse), how would we prove this?

How much time does it take to get the protection under DV after filing the case? And time required for child custody case?

As I said in my earlier post, my bro-in-law's brother's marriage is also broken. She had filed a case of dowry also. Will this help us in proving the abuse and getting child custody?

You said she has to show that she is capable of meeting the expensis of child. If I deposit money in bank on her name or if I buy some plans which would give monthly income, this would suffice the condition?

Once again, thank you for helping me out here.

Adv. Chandrasekhar (Advocate) 06 November 2012

Originally posted by : Manu1234

Since we do not have any proofs of verbal abuse (and physical abuse), how would we prove this?

As you yourself said he and his mother came to your village and abused your family before the villagers. Some of the villagers can become witnesses in addition to your family members to prove verbal abuse. In the case of physical abuse as it happens within the four walls, the court can understand the difficulty in proving this fact and wife's oral testimony will be given due weightage.

How much time does it take to get the protection under DV after filing the case? And time required for child custody case?

In the DV case, you have to file interim application seeking protection orders and generally they will be issued within 3 months, once husband's reply will be taken on the record. If the situation is so grave and if you convince the judge, ex-parte protection orders will be issued immediately. Custody cases will run years together under Guardian ship Act and it will take not less than 3 years.

As I said in my earlier post, my bro-in-law's brother's marriage is also broken. She had filed a case of dowry also. Will this help us in proving the abuse and getting child custody?

You can bring these facts before the court with proper proof and may help you in indirect way.

You said she has to show that she is capable of meeting the expensis of child. If I deposit money in bank on her name or if I buy some plans which would give monthly income, this would suffice the condition?

Please do not file custody case yourself. Let your sister bring her children along with her. Let him file custody case and as respondent you contest it, while keeping the custody of the child during the trial. In the meantime, as proposed by you, find out some employment to your sister so that she can stand on her own feet and live with dignity. Once before the courts the matter comes to show the capability of your sister to maintain the children, then appropriate deposits can be shown. It will be a long drawn strategy. The custody cases will run years together and that is why I am saying first keep the custody of the children and let him fight the case.

Manu1234 (xyz) 07 November 2012

Thank you once again Sir. This is great help, I really appreciate it.

Rahul Kapoor (Legal Enthusiast) 07 November 2012

1. Who would get the child custody? Can she keep both the sons with her if she decides separate?

Ans. Mother will get the child custody if she is able to prove such behaviour of husband.

2. Her elder son is staying with my parents since last 2 yrs for education. What if he takes that child from the school and hides somewhere?

Ans. get the protection orders from the court.

Ans.Under DV Act complaint can file before protection Officer .Senior Citizen Act also there to protect the seniors.

He never shared his financial conditions with my sister so we are not sure but looks like he has good wealth. Our financial condition is good though I am the lone earner in the family.

Ans. Kids and your sis are entitled to maintenance.

regards-

rahul.gogreen@gmail.com

Chetan Joshi (Advisory/Advocacy) 07 November 2012

Be clear to what you wanna do....Child custody depends entirely on the overall welfare of the child....

You can drag the accused to court, or you may choose to settle smoothly....If you make up your mind then a selective stategy may be opted....

Regards

Chetan(dot)7679@gmail.com

Manu1234 (xyz) 12 May 2016

After a lot of tolerence, my sister decided to move out of her husband's house and staying (with her children) with us now in Maharashtra. Soon after that, my brother-in-law came to my native place and started publicy abusing them on the street. All the abuse (physical/mental) on my sister, money taken from us, and gold snatched from my sister happened in her husband's home or at my hometown (both are in Karnataka).

My sister, during this one year, did not go my home town (Karnataka) fearing he would harm her or her children. But in March, he came to our home here at Maharashtra. We were feared but invited him. He went after sometime. Later, he came in April once again. After sometime he started shouting and abusing my sister in our home. He also started shouting at the children. And he went back ramming the main door. This happened in Maharashtra.

Now we were really feared and contacted an advocate. On her suggestion, my sister contacted police and wrote a detailed complaint. Police did not file FIR on that day, asked us to come after a week. We went after one week, then police contacted brother-in-law over phone and asked us to come back after some days. We went to police station many times. Finally after 22 days, when we went to police station in the morning, police said they file FIR as per 498. After spending sometime, they asked asked my sister come in the evening to sign FIR. In the afternoon I got a call from police saying my brother inlaw has come to police station and they asked us also to come to police station. When we went there, police started saying they can not file FIR as per 498 and filed it under 504. In that FIR, it was written that since we did not allow him to meet the children, he started shouting at us. My sister refused to sign this saying we did not stop him meeting children. Then they modified that line. They said everything has happened in Karnataka, you will have to file 498 there. When my sister said he has abused here also a month ago, they said shouting or scolding is not abuse. I could sense the tone change between morning and evening. Police also said, he will come to meet the children.

Now we are more feared. So please help us with your expert opinion.

1. Is shouting at wife and scolding not abuse?

2. Can she not file dowry harrasment and domestic voilance case from here Maharashtra? Can we approcah higher officials in the police to change this FIR to 498 and DV?

3. Children are of the age 8 and 6 now. He is not interested in taking elder son but someone has told him that younger one is lucky and bring prosperity, he wants to take away younger son. Can my sister stop this legally?

4. What could be the reason police chaging so drastically since morning to evening?

Thank you once again. Please help us take proper steps.