Wife eloped with 2 year kid

This query is : Resolved 
 


Querist : Anonymous (Querist)
18 February 2020

Hi Experts,

My wife eloped with my 2 year old kid and has not returned in 10 days.
Upon investigating, my in-laws,told about her affair with someone near her house 5 years ago.
A complaint was given against that person 5 years ago by her father, and he apologized.
However 10 days ago, from her maternal home's CCTV footage, it was clearly evident, that she eloped with the same person early morning 5 am.
An FIR has been lodged with all the above details by her father.

Query1: How Do I legally get the right to have my son.
Query2: Can I file for a divorce immediately, based on the evidences above and request the guardianship of my son.

Thanks in Advance.
Rahul.


Raj Kumar Makkad (Expert)
18 February 2020

1. Though you can file a petition under the provisions of Guardianship & Wards Act seeking custody of your child having 2 years of age but keeping in view the welfare of the child in such early age, the chances of getting his custody by father is remote.

2. Yes, you can definitely file such petition.

N.J.S.Rajkumar alias narasimha (Expert)
18 February 2020

You should discuss this with Learned Good Advocate and not the time passers

N.J.S.Rajkumar alias narasimha (Expert)
18 February 2020

Every day's news paper you would find many children even babies were killed /murdered by the person with whom the mother is having illicit /illegal affairs

N.J.S.Rajkumar alias narasimha (Expert)
18 February 2020

A Learned Good Advocate would certainly get the custody of the child to you

N.J.S.Rajkumar alias narasimha (Expert)
18 February 2020

You have a very good strong ground to get the divorce and discuss with Learned Good Advocate of your place

Raj Kumar Makkad (Expert)
18 February 2020

Go through the following link wherein latest judgment of Hon'ble Apex Court of India on custody of child below 5 years age has been given-

https://timesofindia.indiatimes.com/india/Custody-of-minor-shall-be-with-mother-SC/articleshow/46450506.cms

Raj Kumar Makkad (Expert)
18 February 2020

In the above noted case The apex court quashed the order of Bombay high court which granted custody of a two-year-old child to father on the ground that the Mother had not established her suitability to be granted interim custody of the infant.

Raj Kumar Makkad (Expert)
18 February 2020

Generally, adultery has a minimal impact on the outcome of a divorce case. As a general rule, courts consider parenting and marriage as separate situations. ... Another way adultery can impact your child custody case is if your cheating spouse allowed your child(ren) to witness the extra-marital relationship.

Raj Kumar Makkad (Expert)
18 February 2020

While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.

It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration, Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.

Raj Kumar Makkad (Expert)
18 February 2020

Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent, Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.

KISHAN DUTT RETD JUDGE (Expert)
19 February 2020

Dear Sir,
You can get child easily by filing child custody case if you establish your wife leading adultery life. You can also get divorce on the same ground.

P. Venu (Expert)
19 February 2020

In my understanding, facts posted suggest that the alleged instance elopement of the mother, if proved, constitutes a sufficient ground for getting custody of the child and seeking divorce.

Raj Kumar Makkad (Expert)
20 February 2020

A mother cannot be treated as eloping her minor child of 2 years. Such allegation cannot sustain against her.

Sudhir Kumar (Expert)
21 February 2020

agreed with Mr Makkar.


Querist : Anonymous (Querist)
21 February 2020

Hi Experts! Thanks so much for your response.
I have read that Adultery is not a ground anymore to seek divorce.

Furthermore, would like to know:
1. Can I file case against eloped wife (not sure which sections of IPC)
2. Can I file case against the lover
3. Can I file case against wife's parents

Raj Kumar Makkad (Expert)
21 February 2020

You seek only divorce against such lady and nothing more is required to be initiated. Don't think to open many fronts at the same time.

P. Venu (Expert)
21 February 2020

The present legal position is that adultery is not a criminal offence; but it is still a ground for seeking divorce.

Dr J C Vashista (Expert)
22 February 2020

Although having extra-marital affair by a spouse is no more a criminal offence but still a ground for divorce u/s 13(1) of the Hindu Marriage Act, 1956, proceed for divorce through a local prudent lawyer.

Dr J C Vashista (Expert)
22 February 2020

The connotation of "elope" with a 2 year old child is neither believable nor sustainable in law.

Dr J C Vashista (Expert)
22 February 2020

Since the Courts has to consider "paramount interest" of minor, it is next to possible for father to get custody, however, visitation rights can be granted in a petition u/s 12 of the Guardians & Wards Act

T. Kalaiselvan, Advocate (Expert)
23 February 2020

You can appraoch court for divorce on the grounds of adultery and you can implead her paramour as a respondent in the divorce case, however ensure that you produce substantial evidence before court to establish your case.
This ground is ]also a valid and strong ground for seeking child custody.
You can express before court that you apprehend that the child's future will be affected if she /he is allowed to be under the care of a woman with immoral character, you can rope in the evidences of the divorce case to substantiate your pleadings seeking child custody in this child custody case.
You can discuss at length about all the steps that are to be taken in this regard with a local advocate and proceed on the advises received.

N.J.S.Rajkumar alias narasimha (Expert)
24 February 2020

Makkar as per Mr.Sudhir Kumar and Makkad is once again taking efforts to support illegalities, immoralities and obviously misguiding the innocent querist please.


Querist : Anonymous (Querist)
24 February 2020

Thanks again Experts! Should I be looking for a Civil or Criminal Lawyer.
Are there any good websites/avenues to search for good lawyers

Raj Kumar Makkad (Expert)
24 February 2020

What is good in your eyes? Every person is good in my eyes so better search as per your eyes as you have to chose. There is no such website as you require.

Raj Kumar Makkad (Expert)
24 February 2020

With the bad luck of one of the so-called experts, I am continuously advising here in the same way since 2009 and shall go on il I am not restrained by the Admin or owner of the site.

N.J.S.Rajkumar alias narasimha (Expert)
24 February 2020

Drop outs should not make out false statements.



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