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Raj patel (Manager)     06 September 2011

Child custody

Dear All,

I have posted earlier topics and got very professional answers from experts. Thanks a lot for that.

One more question to ask:

My wife has filed 498a on my family, we got bail. We live in Gujarat and she lives in Delhi. My baby girl is 4 and 10 months old, has been living with my parents since she was 1 year old. My wife and I was abraoad for few years and then she came  to india spent 1 month with baby girl went to abroad again (not where I was but other country). I then came to India before 1 year and has been living with my family and baby girl. My wife doesn't want to live in India and nor wants to live with me even in abroad. She demaned my  babygirl , I refused and she filed 498a, 504, 506 and blah blah on my family..we went to tough time.

At the moment she is India in Delhi and may file 125 or Gaurdian Ship Act..........

Q. Is it possible to run an other case 125 or  Guardian Ship while we are still facing 498a?

The chargesheet has been put up yet, and so 498a hearing is going to take time to start....

Q. Is it possible that court can give us some time on appeal that 498a still need to be sorted as we are not guilty at all. Plus, my baby has been living with my parents since 4 years and studying so Interim custody (if my wife ask for it) should given to us?


Thanks in Advance.



 12 Replies

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     06 September 2011

Q. Is it possible to run an other case 125 or  Guardian Ship while we are still facing 498a?

The chargesheet has been put up yet, and so 498a hearing is going to take time to start....

Yes, it is possible to put these and other cases on you at anytime of her wishes.

Q. Is it possible that court can give us some time on appeal that 498a still need to be sorted as we are not guilty at all. Plus, my baby has been living with my parents since 4 years and studying so Interim custody (if my wife ask for it) should given to us?

Interim custody would be decided on affidavits, if the child is studying the court should generally not interfere with custody, but depends on grounds taken.

Adv. Chandrasekhar (Advocate)     06 September 2011

I answered you earlier and again answer you.  The child needs mother's affection and attention also despite having got abundant father's and paternal grand parents' love.  It is a vital need for wholesome growth of a child.  So, consider to have a talk with the wife to give her temporary custody of child for one month in summer vacation and 15 days each vacation in dusserah and christmas vacation.  If she accepts for this, it is well and good.  On the basis of my knowledge, I predict, if she files permanent custody case, even though she may not get it, but can get temporary custody of child for vacations.  The legal points, I agree with Mr. Kapoor.

s.meghala shree (advocate)     06 September 2011

Mr Raj,

I can know your situation embeded with love and vein. But, being a girl baby she needs her mother by her side in all her times atleast till she is grown up. you may approach the court  at the stage of trial for the temporarty custody of your child in vacations and more often. your child not only needs you but also her mother who gave birth. obvoisly the court may favour her as she has the right to file a case for the custody of the child.  better go with the counselling session which may be held in courts for this sort of matters. wish everyting should end well.

Raj patel (Manager)     06 September 2011

Dear Both,

Thanks for your reply.

To Mr. Shonee,

I know she can put the cases but Do you think because of the 498a has not even started yet, which is falsely placed on us, court may consider our plea to freeze the case until 498a sorted out?. We are innocent .

To Mr. Chandu,

I remember your advise sir, and I do respect you that you think of my baby's welfare, on the contary my wife doesn't.

She only put the 498a because I didn't give my baby and divorce. She actually didn't have affection to baby. She was married before and left her kid to marry me and join me in abroad. Even after her dark past we all have accepted her and treated her so well. But then she just changed like wind with no reason.

Even after this much, I begged her not to take this steps and to consider the life of our baby but she didn't agree. All she wants is unconditional divorce with sole custody of my Baby. She will then fly to abroad leaving me alone without my baby.

I have compromised so much for the sake our love and baby, but I can't put my babe at stake.

Any word of advice is welcome.


Raj patel (Manager)     06 September 2011

To Meghala,

I wish my wife could be like mother as you believe. My baby girl is well attached with me and my parents. She will live with my wife only if I live with her.

leaving me and my parents and going to live her mum, will tear apart my baby. She is 5 years old but well matured than her age.

The counciling part :" I begged my wife too much to reconsider because of my baby...but all she wants is living abroad, partying late night, smoking ...etc.....

It is her stubbonness not affection to my baby girl for asking custody.

About giving her permanat custody and asking for temporary custody';;;;;;;  I can't think of it, she will fly to abroad next day with my baby and I will stay here all my life....filing this and that petition to court!! 

I wish everything goes smooth and we live as a family so my baby girl gets parents and love but My wife wants to win the battle- I explained her is not winning or lossing last....our baby will loose because either she would have dad OR mum......but the dumb woman doesn't listen.

Pray for me.


Raj patel (Manager)     07 September 2011

Dear Shonne, Meghala and Chandu,

Can you please check the post and reply?


Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     07 September 2011

What advise you require? It is replied already. You don't want to give the child, so fight accordingly.




Shonee Kapoor

shrinivasg Advocate. (N)     12 September 2011

It seems your wife is not interested in you. You should sort out the problem by  meeting her  and convince here that she should think of welfare of the child and as the case will take more time do not worry if she does not accept your advise. It is better to solve the problem by meeting with elders in both the family. If she want the constudy of child without valid reason and proposed arrangement of education of child let her file a case. both need the child but there is no association of both of you,then let the things on as it is till final decision is taken through court.


Raj patel (Manager)     12 September 2011

Dear Mr. Gosavi,

Thanks for your advice. They are not ready to talk. I meant she called me few months ago and asked on the phone~!! I told her this is not a thing we can discuss over the phone. Then out of blue moon one night at 10 pm they arrived at our home (From Delhi!! without telling us!!) and asked for my baby!! I told straight NO. I told her how come she come at late night and ask for baby to be given to her??!! Is my baby vegetable someone can take this way?

Then they went back and came after 2-3 weeks (during that time I called her dad and explained him and he sounded reasonable) they came to local police station and called my family and threatened me to file 498a and etc. if I don't give baby and divorce outside court.

I said," I can only give baby If I have to (as my family has been told by 2 or 3 lawyers that no matter how much you took care of baby but court will only give her to her mother-I don't believe this) and divorce by mutual understanding in court only !! So she filed 498a. I explained her about child welfare but she was so stubbon.

What do you think of chances of winning me the case? Especillay my parents brought her up very well. she has been studying here since 3 years!

Is there any more case she can do on my family (on problem)?

Should I sit quiet till chargeseet filed or should do counter case?

We are all  innocent.


Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     13 September 2011

Brother Raj,


Some questions can not be answered in %age.


When it;s either winning of loosing. It is 50:50 for all practical purposes.


Give it a good fight, you have a strong case.




Shonee Kapoor

shrinivasg Advocate. (N)     13 September 2011

You have to face 498A. But as it seems it will not prove and the case can be dismissed,which may take 1 year or so. If she got evidence against you of  cruelty or otherwise not clear? Donot afraied. Let the case go on. However you can file a case of Restitution of Conjugal Rights if practicable and if you feel that your wife should be associated with you sincerely otherwise the RCR will be to pull on the time. It is not clear why she stays abroad. What was understanding before marriage. How she will take care of the baby after taking custody if allowed? In the present circumstances, if you are innocent and she wants divorce in that decree cout will decide of custody if court feels that  welfare of the child will be taken care of by her very well. But in your case it seems that you and your parents are taking care ofthe child. But the case in in her favour due to age factor of the baby. Hence it is the only remidy to pull on the case,at present. IT is alway better to solve the matter my family meeting through advocates of both.

Raj patel (Manager)     15 September 2011

Dear Shoneeji and Gosaviji,

Shoneeji, your words make me feel so positive. Thanks you have been real help since my first questions. I am sure lots of other people in this forum think same.



Thanks for cotributing your valueable time for me:

Now: I know this is long but please read it.

If she got evidence against you of  cruelty or otherwise not clear?

I never harresed her. Of course we used to have little "Tu Tu Mai Mai" but thats all. However, I had smaked her on one occassion, when she came from party at 12:30, drunk and her boss came to drop her off. I told her not to stay till that late and drink but that all.

She then striaght away  called police and I spent 1 night in jail. (happened in 2009/10 in US)

Next day I came home, loved her and apologies to her. After few days again she came from party, this time one of our family friend brought her as she was damn drunk and unconsious. I had to then admit her in Hospital for 1 night. I didn't fight this time but gave her love and words of advice.

I then sent her boss pleading email not to call her in party as it put me in very ackward situation. (happened in 2010 US-my family wasn't with me, we used to live there)

After that we moved to another house and then she used to go to late night party but I never touched her sometime I used to get drunk and used to tell her few bad words but never harm. But then that didnt make her stop to go to party.
{During all these time my parents used to take care of my baby who was in India }

What was understanding before marriage.

Before marriage as I was in US (student visa) and she was in Malaysia [both indian citizen-but she has permanat res. of Malaysia} she came to US on my dependant. She likes to live abroad so I was agree with her. When my visa about to finish I asked her that we should settle down in Malaysia as she has PR and we wont have any problem. Our kid will be brought up there as well. We both agreed to idea. She then came to India stayed at my place for 10 days and then went to her parents house for 1 month and came back to my home and stayed for 15-20 days and left my baby back with my parents and went to Malaysia.

I during that time, found the job interview, accomodation for her. I also transferred 600 pound and later 6600 pound in her account so she doesn't get any problem.

I then after 4-5 month came to India and waiting her to put up my file. We used to talk daily when I was in UK but after I came back to India I asked her if she calls me as it was much cheaper and comfortable as I wasn't working-enjoying my holidays. I however used to call her once in while from INdia too! After few months she lost her job and I found her one more from India( found specific job according to her skills, asked her how to prepare for interview etc.) ...but the main thing was she never placed up my file....suddenly she used to stop frequently and called once in monh. During this time I didn't work as I wanted to spend full time with my baby plus any good company asked you to sign 2 years minumum contract for work and we decided that I would join her with in 3 or 4 months.

One day I asked her that I will come on visitor visa and then we will put up file from there, it will be faster too. She said come with baby, I said, this doesn't make sense on visitor I can't work and then how we are going to survive with our baby. let me come get PR (3 to 6 months maximum) and we will call our baby. My was that time studing in Junior K.G. and she is very bright student. She said, come with baby or I will not come to pick you up at airport!!!

I called her dad and explained that his daughter is not understanding the situation. I asked him that should we live together as we are husband and wife. (by now it was approximately 7 months we were apart from each other) He said,"You both didn't ask me when you got marry so do not include me in this!"

After this she called and said,"I will only keep my baby so give her to me. I will call you once I regain trust in you as you have beaten me and gave me lots of trouble while back in US." I said," I didn't but if you still believe it then it was before a year, why don't think of present and think of our baby," But she didn't listen.

She then, without informing me, came to INdia at her parents house at Delhi and then called me that I will come to take my baby. I said,"No". She then without telling came at my home at 10 pm to take her, I refused. After that she filed 498a, 406, etc on my family................


How she will take care of the baby after taking custody if allowed?

She doesn't work at the moment she lives with her parents in very small town near by Delhi. Her dad is landloard and may show in court that they will support my baby.

My thinking which may be right 99.99 %:

She will either go to US where her parents have multipal visitor visa and her unmarried brother, sister lives there on student or work permit. She is that much stupid or blind that she can go on visitor and can over stay without hesitation. She may get marry to someone to get citizenship faster for sure.


She will go back to Malaysia and ask government to help her out with free accomodation and money allowances.

I know she is her mother but I do not trust her. She didn't even spend more than 1 year with her. When my baby was 6 months old, she couldn't even make her sleep, I used to take her on my shoulder and petting her long till she goes to sleep!! My wife is so careless, materialistic and doesn't think what is realstic. Her parents never supported her for our marriage and for the sake of court they may show they will support her but afterward they will not.

She already left her previous baby to marry me and to come to US. How can I trust her now that she will not marry to someone for the sake of going aborad? What about my daughter, she will have to be brough up with step-dad, who may not even care for her. !!!! when i will be here crying everyday for my princess.

However you can file a case of Restitution of Conjugal Rights

My family and I do not trust her that she will not do the same to my family. My parents fed her with their own hand. They came to US by their own expense because she was preganat and needed support.

I still sake of my little princess, may think to live with her but not with my family. I then have to live separately may be in Malaysia. But after all this, I do not know what should I do? Does filing RCR make my case stronger or can I just honestly and simply tell court that I want my baby to be loved by both of us but I do not trust my wife at all.
Is there any legal documents we can do that she will not harrase us falsly in future??

Thanks a lot for reading such a long message.


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