Chirag Shah 06 December 2016

How to give interim custody to mother during divorce proceed

Dear Sir, I was married in 2002 as per Hindu customs and traditions. As the wife had medical problem, the first child was delivered after 3 years treatment, in the 5th year of marriage, in 2007. Thereafter, we had another child in late 2010. Although there were many problems during the married life and she had a very short tempered nature, I had compromised and carried on with married life. In 2015 she confessed that she was in extramarital relationship for 5 years since 2005 with her colleague. It was in the duration of her extramarital relationship that both children were conceived and delivered. After this, we filed for mutual consent divorce petition in May 2015 the terms being that she would divorce peacefully and the custody would remain with me, also that she would never ask for custody of children. She was returned all her Stridhan. However, in July 2015, she withdrew custody without intimating me of the same. Few months hence, she filed for RCR and asked for her Stridhan back and mentioned in RCR that she should be given permanent custody of children. We have two sons, the elder is aged 9 years 5 months and the younger is 6 years two months old. However, she has made no attempt to either seek visitation or to gain custody, since May 2015 (time of filing of Mutual consent divorce petition.) Since she withdrew the consent without any intimation to me and she said at time of withdrawing consent that the reason for withdrawal is that consent was taken under duress, and that she was not being allowed to visit or talk to the children and since she has contested the divorce petition ; I wish to give custody of children to her. Till date, I have been able to support the children because of help of my parents. However they are aged 66 and 65 years and are in poor health. The wife is professionally qualified and teacher and earning well with limited working hours. I am a self employed professional with 16 hour work shift. How should I go about it? She has refused to acknowledge her adultery too now, which she had confessed then.

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(Guest)

Adultery cant be proved. Even if proved court wont punish the woman, but the man can be made a party u.s 497. She withdrew consent, means that you should fight the case on basis of merits. She sure appears to be crooked. For such ladies, you cant do anything, she has taken back all her belongings and now she turns her word.

Regarding the kids,you should be in a position to take care of kids till the age of 18 years. Your parents are old, I really cant imagine how you would manage looking after the kid. FIghting custody case will be waste of time. Talk to wife, if you mutually agree, let go off the kids on a share parenting plan signed and agreed by both of you and submit the same in court. This however needs to be done on mutual trust. As defaulter,? Once again both of you should stand in court again and again.

This process of going to court will go on till kids turn 18. In the mean time, check whether the kids are really yours or not. If the kids born outside of wedlock then you need not give any share in your property to them, nor you will need to give any alimony to them or the wife coz it will directly prove adultery. This can be confirmed by way of DNA test. Give application to court asking for test to be done on the kids and you.

Zoheb Khatri (Practicing in Mumbai ZohebKhatri@gmail.com) 06 December 2016

As per CrPC 125, you are duty bound to maintain your legitimate and illigetimate child as well,Only thing you can do here is go for share parenting plan.