Hi,
I am married for the last 10 years and living separate from my wife for the last 3 years out of that 10. We have a 6 year old son.
We did not move for filing divorce proceedings, as we were unable to agree on the aspect of custody of our son.
During our separation period of 3 years, we agreed to shared custody of our son. He stays with me over the weekends and spends the week with my wife.
My wife is very well employed and has a stenuous and travelling job.
In the beginning of this year, my wife informed me that, she was planning to travel to Australia for higher studies as she wanted to move ahead in her career and told me that if that materialises, she would want to take our son with her. I told her, we will see when that happens.
Now, about a month back, she sent me form on email, saying she needed my consent to apply for my son's visa to travel to Austraila with her as she had applied for a visa to travel to Australia for her studies. I refused to consent and even wrote to the Australian Immogration Authorities against granting such visa to my son, as no legal arrangements for child custody was there between me and my wife. My wife is going to study, and she says that as per the visa she has applied for in Australia, she can work also. I said that given, the profile she mentioned, she may not have time to take care of the child and it would be better, if she went alone, leaving the child with me and upon her return, we could proceed for the child custody issue in the court of law.
Later on, after speaking with my family elders and wellwishers, I agreed to give her consent to take my son to Australia, on the condition that, the consent would be only for the period of her study (approximately 2 years) and that after her study period, she would return to India with our son. She agreed to that. I wrote back to the Australian Immigration authorities and withdrew my objection.
We also decided to finally file for divorce by mutual consent under the above conditions.
Today she sent me a draft petition received from her lawyer, wherein, it was mentioned that I was consenting to give her full custody of the child without any limitations and agreeing to have visitation rights. She also mentioned that for all visitations, I have to bear the costs even if it means, travelling overseas, if she chooses to stay back.
I do not mind giving her consent to travel with my son to Australia for 2 years. I would like to have joint custody of my child so that I can be a part of his growing up process. By this I mean, that my son can travel to India to be with me during his holidays and whenever possible, I can travel to meet him.
I would like to know, what are my rights as a father and what can I request and expect under Indian Law in this regard?
I also suspect that my wife has been in another relationship even before we separated. The recent example of this was, she took my son on a vacation for about a week, and the person with whom I suspect she has a relationship, also travelled with them. This was informed by my son, when he met me after the vacation and he also told me that all three of them stayed in the same room.
Now except for my son saying this, I have no evidence to the fact.that my wife is in another relationship, while still being legally married to me.
Would this constitute as adultery under Indian Marriage Law (given that we have been staying separate for 3 years) and can my son saying something about this, be taken as evidence during divorce proceedings.
If yes, what chances would I have for requesting for child custody and giving my wife visitation rights to my son?
