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saayanbanerjee   01 January 2018

Request your valuable legal advice on my marital issue

I have married in December 2009. Based on my wife’s and her younger sister’s expressions before marriage, it was informed by her relatives that she loves me a lot and does not want to marry anyone else except me. Her marital consent is also reflected in the marriage registration certificate.

After the marriage took place, things were moving smoothly in the house for a month or two. However, after interacting with my wife in detail, I came to know that she was actually not interested in this marriage and that she wanted to remain in Kolkata to do a job and in turn support her mother and sister. She also said that the marriage was forced upon her. I felt very much cheated, as I strongly believed her words before marriage and also I felt that injustice has been meted out to me and my family.  

This kind of nostalgic attitude even reflected in her day to day activities in home, for which she was initially unable to adjust and mix freely with my parents and even me, inspite of a homely atmosphere around her. This kind of reluctance even made it difficult for her to appreciate some of our cultures. She was even unable to appreciate my mother, who had tried in her best possible way to please her with all support. I had tried in my best possible way to support her in whatever she wanted. She always used to say that had she been in Kolkata, she could have done some job and grown her career further in order to support her mother and sister. However, this was not possible in Chennai because of her language problem. I tried to provide her with the required guidance in improving her language and computer education skills. But, some concerns always used to roam around in her mind because of which she was unable to concentrate much on all these things. This kind of attitude continued for some months with some minor occasional troubles and frictions in home, which I managed to handle it inspite of loosing temper at times.

In April’ 2011, our daughter was born. The marital situation became better after getting a child. She wanted to go to her home when my daughter was just six months old, in order to establish their home condition properly with some promoter. She told me that since her father has expired and her younger sister is inefficient in doing these activities, therefore, she was required to coordinate the house building activities in Sonarpur, Kolkata, and would return to Chennai only before schooling starts. I also agreed to the same.

Till the beginning of 2014, she was in her hometown with her family in order to help in renovating the entire house with the promoter. But unfortunately, there was some illegal issue associated with the promoter, and their home could not get established properly. So, she returned back to Chennai in 2014 and my daughter was admitted in a playschool.

Things were going fine, till in 2015, she complained of some heaviness in her chest, which she was not caring so much. With consultation from my sister (who is a child specialist in West Bengal), I took her to a gynecologist, from where, after all diagnostic tests, an early stage malignancy was detected. This caused a further mental break up in the house for some time. I targeted in providing her the best possible treatment and care in Apollo Hospital, Chennai. She had to take 6 cycles of chemotherapy, being an early stage cancer, after which the doctor advised to take some hormonal medicines and a monthly injection for 5 years or somewhat more. Understanding her depression, the doctor advised us to consult a psychiatrist even, which she refused. During the initial period of malignancy detection and surgery, my mother was there and extended all her support.

During the 2nd chemotherapy cycle, she asked her mother and sister to come to Chennai. Before her last chemotherapy cycle in July 2015, she told me that she wants to go back to Kolkata, and cannot come to Chennai for the time being due to her health issues. I suggested her that since daughter’s schooling is involved, therefore, my parents and her family could make a mutual adjustment of being in Chennai alternatively throughout the year. Being a Central Government Quarter, I also have maid servant available in our residence for handling majority of the jobs. So, I assured her that it would not be a problem and she need not be concerned. However, she was stubborn enough, not to listen to what I said.

Her mother and sister had the same opinion of taking her back to Kolkata, based on what she said. They started complaining with some illogical statements that, Chennai was not a good place for living as all amenities were too far. According to them, the foods were not fresh in Chennai, and the weather was too hot for living. They also had the opinion that this cancer happened as she had to cook day and night in such a hot atmosphere. Whereas, I have observed my mother from childhood how she used to carry out miscellaneous household activities and cooking, even at the age of 60, in Chennai. I feel that these statements are not rational as cancer can have multiple causes and origins. They tried to justify that she had an earlier occasion of tuberculosis, which had aggravated the cancer to happen, although according to medical science, there is no link between TB and cancer. They even said that she had problems in cooking, and that she had tortured herself by cooking always in Chennai. Even doctors also cannot point out a single cause of cancer. I felt bad that their unwillingness to live in Chennai and cooking would be associated with the only cause of cancer, as per their point of view.

The severity of her cooking problem was not expressed to us before by anyone of them. Before marriage, we even got the information that she used to cook most of the times in her own home. Anyhow, I assured them that maidservant is there in the house and a separate person would be employed for cooking. Additionally my mother would also come to support her. But she and her family were adamant enough to listen to me and went back to Kolkata. Seeing her health conditions and depressions, I could not object to their illogical decisions and booked the Kolkata flight ticket. At that time, my daughter was just in LKG. So I suggested her to come back to Chennai before she is admitted to class 1. Ignoring my words, all of them left by flight to Kolkata.

At present, her regular hormonal therapy medicines Aromasin and Zoladex as well as liver medicines are being administered, as a precautionary measure. She is also prescribed with Ayurvedic tablets and parallel anti-oxidant rich food supplements. These medications need to be continued for 5 years or somewhat more for avoiding the risk of recurrence.

Today my daughter is in class 1. I have been telling her often even now also, asking her to come back as my daughter needs proper guidance as she grows up. I can guide my daughter in a much better way and provide her with all required extra-curricular facilities, available in our residential campus, which I feel she is deprived of at her hometown. I also felt that my support would be of great help to my wife at this stage and I can handle all the school related activities quite well, for which she has taken the full responsibility, inspite of her side effects. In my current residence, maid facilities are available and also cook can be arranged on extra payment basis, even if my mother is not there. It may take sometime for that but ultimately can be arranged if people are there in home continuously. I also suggested her that we have the Mess facility here, from where, in case of any need or emergency, we can arrange the food. But she did not agree to all these things and keeps on complaining against me and my family and subconsciously tries to justify and prove why cancer happened to her. Sometimes, I used to lose my temper, though I did not want it, and likewise occasional fights happened.

I suggested her to come back atleast in 2020. During that time, her medicinal course will almost come to an end. My daughter would be in class 4 and would be a bit grown up. She told that she cannot come to Chennai as she cannot travel like that, even though flight is there. She says that the food is not fresh in Chennai, and that live fish is not available in Chennai, and so she does not want to come back. I do not know why these causes really come into picture, when there are so many people from West Bengal living here. More than fish, fruit and vegetable supplements along with Ayurveda are more reliable products over a long run for a healthy life. Moreover, travelling from Kolkata to Chennai would not be a daily affair as well.

She told me to take transfer to Kolkata. But unfortunately there is no unit for us in Kolkata. It is there in Balasore, but instead of being there, I feel it is better in Chennai, being a metro city with all facilities. Also, it is not possible to quit the job in Chennai and go back to Kolkata, searching some other job, because of the present financial liabilities. I also suggested her that if she wants to stay there, atleast she can send my daughter back here for further educational guidance. As usual, she does not want to leave her daughter. So the present situation is that neither I can take transfer to Kolkata just like that, nor she is willing to come to Chennai with all fixed subconscious ideas.

I feel that this situation is not suitable and conducive enough for the development of the child and also for the child’s future, as this is the time when she needs both her parents to stay together, and also my wife needs her husband’s support at this crucial time. I feel that some of the statements and subconscious justifications, which my wife, her mother and younger sister are deriving, are not correct. My wife’s other relatives try to provide her with all moral support and encouragement, so that she can come out of her depression and get back to me soon. However, it is worth mentioning that her mother and younger sister do not like to keep any relation with the other family members, does not let my daughter get in touch with any of my or their family members, and always keeps her in a closed boundary.  

It may be noted that, even though my wife and daughter are away from me for almost 2 years, I have been providing them with the required financial assistance, which is categorized below-

a. Monthly transactions to her bank account: Rs 12000/= (sometimes more depending on need)

b. Medical treatment expenditures for the hormonal therapy medicines

c. My daughter’s education fees.

Based on the above situation, I request your valuable legal advice and guidelines for the following-

a. Getting my wife and daughter back to stay with me in Chennai.

b. Taking child custody if she is not willing to come back.

c. Continuation of financial assistance, while she is away for such prolonged period.

d. Proceeding towards mutual separation/ divorce in the worst case.



Learning

 3 Replies

Vijay Raj Mahajan (Advocate)     01 January 2018

It may be noted that, even though my wife and daughter are away from me for almost 2 years, I have been providing them with the required financial assistance, which is categorized below-

a. Monthly transactions to her bank account: Rs 12000/= (sometimes more depending on need)

b. Medical treatment expenditures for the hormonal therapy medicines

c. My daughter’s education fees.

Continue the financial support and keep proper record of the same.

Based on the above situation, I request your valuable legal advice and guidelines for the following-

a. Getting my wife and daughter back to stay with me in Chennai.

Forcibly that will not be possible, you will have to convince her. Even getting decree of Restitution of Conjugal rights under section 9 of the HMA, will not solve this issue and court can only recommend her to resume conjugal relationship with you in Chennai, but cannot forcibly make to joint you there.

b. Taking child custody if she is not willing to come back.

The custody of minor child can be taken if she agrees for it, Otherwise you will have to file petition for the same in the Kolkata District Court under the Guardians & Wards Act, not in Chennai District Court as the jurisdiction of the court where the minor child resides and she is residing in Kolkata.

c. Continuation of financial assistance, while she is away for such prolonged period.

Yes that you must provide otherwise she will file maintenance petition under section 125 Cr.P.C/DV Act in Kolkata District Court for which you will keep on running between Kolkata & Chennai.

d. Proceeding towards mutual separation/ divorce in the worst case.

That will have to make her agree and provide her huge sum of permanent alimony and maintenance. Child custody and maintenance issue will also be settled between both parties.

 

saayanbanerjee   01 January 2018

Dear Sir,

Thanks for your reply.

I would further like to know the conditions under which the child custody can be taken by petition. Why I am asking is because this is the stage when she needs proper guidance and other basic amenities around her, which she is deprived of there. So can you guide me on the conditions for child custody?

Thanking you and regards,

Saayan Banerjee 

Vijay Raj Mahajan (Advocate)     01 January 2018

Custody of the child is decided on one ground which is the Welfare of the child; the court will give physical custody to the parent with whom the best welfare of the child exists.

Now what all that will decide the welfare definitely the education, apart from the best quality of life that the parent can provide. You, the father is working and have been providing maintenance and financial help to both mother and child throughout these years will be adding to your case. Mother is under medical treatment for cancer and has to take care of her herself apart from minor child will also be taken in consideration. Age no doubt is one of the major factor in cases of child custody as it is usually considered that child of younger age i.e. less than 10 -12 years are given best care by mother as compared to father, but here the mother herself is not keeping best of the health, her taking best care for child is questionable.

Look how your lawyer handles your case it all depend on him as he can convince the judge for getting your physical custody of minor child. Rest the standard of lawyers in Alipore District Court, Kolkata I found not so high that can get you custody so easily of your minor child.


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