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Nikhil Sharma (Manager)     18 February 2022

Child custody suite before divorce

Hello,

In four and half years of marital relationship, me and my wife have stayed separate for two years. She is still staying at her mother's house from last one year. I have tried everything possible to bring her back but she along with her parents have not shown any interest. I tried meeting my daughter too, but she didn't allow me to meet her.

I want to meet my daughter and I am even ready to go to court to meet my daughter. But I don't want to file Divorce right now.

My query here is, can I file child custody suite before filing divorce?

1. If yes, then can the court give me permission to meet my child?

2. What consequences I may be ready to face post filing child custody suite?

Request you to please advise.

Warm Regards



Learning

 7 Replies

Dr J C Vashista (Advocate)     19 February 2022

Answer to your queries are:

1. You are entitled for visitation rights of your daughter, did you apply to concerned / jurisdictional court ?

2. Vague and subjective question.

1 Like

Mayur Shrestha   19 February 2022

Dear Querist,

(1) Since the wife even after your mutual efforts is not willing to come and reside with you at your place then The provision of  Section 9(3)of the Hindu Marriage Act, 1955 specifically demands the restoration of the rights formerly enjoyed by the couple's parties. The Hindu law test refers to the concept of "let mutual fidelity continue until death," and if either spouse withdraws from it and leaves the society without a particularly compelling reason, the burden of proving the authenticity of the statements mentioned in the petition falls on the concerned spouse, after which the decree will be granted. In such a case, the opposite party under the idea of Restitution of conjugal rights, a party may petition the court for the restitution of conjugal rights.

(2) This means that if the spouse which in case your wife is refusing to reside with you, then you as the husband have the free option of petitioning the family court for a decree for cohabitation, and if the court’s decision is not followed, then upon application the court may take strict action against the spouse.

(3) . Additionally when a decree is passed under Section 9, the only sanction for enforcement of the decree under Order 21, Rule 32, CPC is the attachment of property against disobedience of the decree where the disobedience follows as a result of willful conduct i.e. where conditions are there for a wife or a husband to obey the decree but the same is disobeyed by one of them in spite of such conditions. In the case of Saroj Rani v Sudarshan Kumar Chadha (1984) - The Supreme Court Upheld Section 9 of the Hindu Marriage Act, 1955 stating that this provision served a social purpose as an aid to prevent the breakup of marriages. Therefore, this will also safeguard the sanctity of your marriage and will not be detrimental to your relationship with your wife. 

Finally, for the purpose of visiting your child, you need to consult a family law professional and resort to out of the court settlement as to deciding the custody of the child or decide a timings/days on which you shall be able to see your child via the process of ADR which will include Mediation between you and your in-laws.

 

Hope it helps.

 

 

1 Like

Nikhil Sharma (Manager)     19 February 2022

@Dr J C Vashista

Thanks for your response.

What I meant from my second question was, if I file a case for child custody for visiting rights. Will I be asked to pay maintenance? Or what other cases my wife can file in return?

Dr J C Vashista (Advocate)     19 February 2022

Dear Mr. Nikhil Sharma,

Asking maintenance is another issue, please keep it aside while discussing visitation rights or custody of the minor.

Your wife and child maintenance is your moral, social as well as legal responsibility.

She may file application under section 12 of the Protection of Women from Domestic Violence Act, 2005 for various reliefs as provided in section 18 to 21 of the Act.

She may move application under section 125 of the Criminal Procedure Code, 1973 for maintanance of herself  and child.

She may file a complaint under section 409 /498A of Indian Penal Code, 1860 for dowery and harashment.

She may move petition under section 9 of the Hindu Marriaage Act, 1955 for restitiution of conjugal rights 

and / or

She may file a petition funder section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 for grant of a decree of divorce on the grounds of cruelty and desertion. 

No one can presume what is there is store for you.

1 Like

P. Venu (Advocate)     19 February 2022

yes, you may seek visitational rights from the jurisdictional court. 

1 Like

Joint Secretary   01 March 2022

Dear Querist


Simply you can file a suit for custody of your child along with visitation / Interim relief application before family court.
I hope my answer was valuable for you.
Vivek Kumar Singh
Advocate
District , Family & High Court Lucknow
Phone No. 9889166094

Parasar   03 March 2022

yes she can file all the cases, for advice on that please drop an email to sarvepallilegal@gmail,com


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