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shweta   20 April 2015

Child support

We have marriage of 11 yrs with 6 recent yrs of separation. We have a 10yr Son .

My Husband “the Father” does not support financially or come and meet the child (i have not stopped him in anyway).  Before separation we used to stay together in a house owned by my husband’s Mother.

Now i have approached him with a notice to come for a Mutual Divorce, where in i have asked him to make financial arrangements as his responsibility towards the childs shelter as education costs are being borne by me. I have approached for Divorce after 6 yrs of separation is because now it is difficult to meet ends on a salary of 21,000pm  and keep up the child's needs along with my own .The average expenses per year on child come to around 2 Lac pa that leaves me with nothing at all .

In out of Court settlement,

My husband says he can only contribute his one year salary of 6 lac for the child’s future.

Which is very less as i have already put in my everything to bring up the child so far last 6 yrs and this is just not sufficient for future of this 10yr old and a kid does start working upright as soon as he become 18yrs old those are the actual years when I would need the funds .

As of right now I am staying with my parents but since they are shifting home we have no residence to stay. I do not want to relocate as the child is doing well the school is good and importantly I do not have fresh funds to pour in the admission process and I have a steady Job However the earning are less then expenditure I am not asking anything for me. Firstly, I want a place to stay for the child and me and if I have to pay rent as well look after the child even if I consider I work till 60yrs. It is very difficult to meet the ends. My Husbands calculation that he will contribute his 1 year salary and I will contribute my life time as well as my lifetime salary is confusing and would like to know if courts accept such stuff ??

The father does not seem to agree with Alimony of 40 Lac Neg, so I have no way else other than to go to court to get it settled.

My Husbands have no other obligations such as loan or any financial burden on him. He leads a very well to do jazzy life and has not taken the stock of our living since last so many years.

I request your suggestion on this please as to, how I should place it more correctly for Financial Settlement and mutual Divorce and what are my chances if I apply for Div. contested in court.



 24 Replies

Adv. Chandrasekhar (Advocate)     20 April 2015

As your main concern is about the child's welfare and not for going to remarriage, it is not advisable for you to go and file divorce case, as such divorce will not help you to achieve anything for you or your son.  Instead of that, you can opt either section 125 cr.p.c. case seeking maintenance for you and your child (perhaps you may not get anything, nevertheless you ask for yourself also) and in that petition show your true income of Rs.21,000/- per month and his income (my guess according to your version is Rs.50000/-) anc child's expenses monthwise.  Now, the changed circumstances force you to part away substantial part of your earnings for house rent, you should clearly express this in your petition.  Alternatively, you can file domestic violence case, wherein a special provision is there for you to claim house rent.  Consult a good advocate.  During the above said proceedings, an opportunity come to you to go for a settlement comprises of lumpsum amount for you and your child in return to mutual consent divorce.

Wish you best of luck.

1 Like

Samir N (General Queries) (Business)     20 April 2015

I would not advice you to file a DV case because under your circumstances all relief you are seeking you can get without filing a DV case - thru 125 Cr.P.C. and civil proceedings. Granted that 125 Cr.P.C. is also not civil and that DV is quasi criminal... but DV becomes a nuisance for both parties. Of course, there are situations where DV is mandated, for example in a live-in relationship not involving matrimony.  That is not your situation - so, stay away from DV.  In general, keep your litigation simple.  Fight on one front. Do not open too many battlefronts with the intent to harass the other party because then such a strategy will likely boomerang back...

1 Like

shweta   21 April 2015

Thank you both of you  .

 

 

Now i understand that Divorce is unimportant as it would not support my situation and that he may be granted divorce without  much relief to my problem.  I have no intention to open litigation  for Harassment even though i have an NC done while i stayed with him and the proofs of his infedility , But since i do not have so much of time and funds to vest .

I am trying to use the opportunity to settle for lump sum for my childs best .

 

 

Request your suggestion on as to,

1) How I should place it  for Financial Settlement  if not for mutual Divorce, Since he is not ready to give alimony of 40Lac / can i ask him  to make permanent residence arrangement in the name of child so that i don't have to pay rent ,so that i can work on his education and living by my self?

2) Do i have to tell the court that things were not working out in "out of court settlement" and that is why  I appealed through 125 Cr.P.C ,can he use this out of court settlement against me as extortion ,becoz for me this is also  much of self inflicted Harassment negotiating for my sons future ? 

3) Can there be provision of stay order on remarriage in 125 Cr.P.C  till the case is not resolved , as he may remarry and say he already have a priority or liability on him  to cater to?

 

 

Request your views and responses.

SAINATH DEVALLA (LEGAL CONSULTANT)     21 April 2015

6 yrs of separation, didn't he ever think of divorce and remarriage? If he is sincere towards the child better go for an amicable financial settlement without any legal hassles. 

1 Like

Jatin Mittal (Corporate Lawyer)     21 April 2015

Hi Shweta

Firstly, i highly appreciate your will to educate your child and give him due care with love and comfort, in the situation that you are into.

I would not suggest you go for any DV case, you will only end up spending money and time. Since i understand that your financial position is not very sound, and you will never want to spend your hard earned money on fighting the cases, the money you require for your child, contesting a DV case does not make sense at this moment.

Since the father has already agreed to give you almost 6 lacs in one go, try if he agrees to give you the amount monthly, by doing this you will also feel that some extra money is flowing in your hands, or we can ask him to raise the amount a bit and make it a FD in the son's name, so that at least in his crucial years, the money is readily available.

I am suggesting you all this because as per my understanding, since you have been separated for 6 years, the attachment has gone away and filing cases against each other will take the rest of the attachment also.

For any clarification or advise, write to me at mittaljets@gmail.com. No charges for the consultation.

1 Like

Samir N (General Queries) (Business)     21 April 2015

Request your suggestion on as to,

1) How I should place it  for Financial Settlement  if not for mutual Divorce, Since he is not ready to give alimony of 40Lac / can i ask him  to make permanent residence arrangement in the name of child so that i don't have to pay rent ,so that i can work on his education and living by my self?

You have to file a maintenance application for you and your son. That includes right to residence.  How all this is flavored in any settlement you have with your husband is left for you and your husband to work out. The Judge will just order some amount... if there are any specifics, such as some specific residence that you want to stay in, you will need to put that in your maintenance application with proper justification.

2) Do i have to tell the court that things were not working out in "out of court settlement" and that is why  I appealed through 125 Cr.P.C ,can he use this out of court settlement against me as extortion ,becoz for me this is also  much of self inflicted Harassment negotiating for my sons future ?

Neither you nor your husband need to discuss why you are in Court! You file application to assert your right and he will file responses to defend himself and/or vice-versa.  Remain focused on the legal rights and defenses only.

3) Can there be provision of stay order on remarriage in 125 Cr.P.C  till the case is not resolved , as he may remarry and say he already have a priority or liability on him  to cater to?

Until you are formally divorced, neither of you can enter into another marriage and any such marriage will be void in the eyes of the law.  Therefore, any application for a stay order will be redundant and probably will be rejected on that basis alone...

1 Like

SuperHero (Manager)     21 April 2015

@Shweta - Learned advocates have given you advice.

But I see 40 Lakhs as high amount. I don't know how you came up with the number. 

Also your husband mentioned 6 Lacs and that is his 1 year salary. 

Try to negotiate and settle the matter amicably. Wish you good luck. 

Adv k . mahesh (advocate)     22 April 2015

in my view the amount you want to as alimony or one time settlement is not high after reading all your queries and thinking about your child future

1 year salary 6 lakhs
and you separated 6 years back means

a better option in my view is house in your child name will be good option rather then cash because a property does not diminish and the amount is also you does not want right now only for his future prospects only and hear both the options like your residence and future education will prosper in my view

and better option is 125 crpc will give you an option to ask interim maintenance for your child and in petition you have to give all the details what for you are asking about and this should be projected very cleverly

so first meet a local advocate of your place and take advice and decide how to go personally or legally

1 Like

shweta   22 April 2015

Thank you  Gentlemen, for being so thoughtful on my query.

Most of my Doubts are clear now .Your experience and knowledge has given me a good insight .

Thank you  personally Adv Chandrasekhar ,Adv Mittal,Adv K Mahesh.

Thank you Mr.Samir that was very helpful .

shweta   22 April 2015

@ Sainath devalla 

6 yrs of separation, didn't he ever think of divorce and remarriage?

 Ans – He has already seek out legal help 6yrs back when I returned , possibility is he would have got advice “Until you are formally divorced, neither of you can enter into another marriage and any such marriage will be void in the eyes of the law.”  But, I don’t know on that part so I cant comment actually .Else He may have not found his marriage material girl, however I have seen him steady with someone now. So was having these apprehensions.

If he is sincere towards the child better go for an amicable financial settlement without any legal hassles. 

Generally No woman would like to leave a good Man, similarly in most cases a man does not like to leave a good woman. Especially where one would have to spend money to lone get away with it!

Sincerity towards the relationship with child has to be developed, so if any substantial steps or affirmative actions would have been taken in past 6 yrs. Reconciliation would have been accomplished.   You are right amicable financial settlement without any legal hassles is the way to go !

 

Your best of Luck must pay off .Thank you for the same .

shweta   22 April 2015

@ Super Hero

But I see 40 Lakhs as high amount. I don't know how you came up with the number. 

IF it’s only about amount.

I spend 2 lac year on childs ~ School fees , Tution, Crech, Books, Stationary, Skill classes, Sports coaching, travel expenditures, Expenditure on clothes, Medical, Entertainment in terms of going to mall or someone’s birthday or his birthday or eating out like wise.

Let’s take in ideal situation and education levels a child starts earning at the age of 24 yrs

So, till that time I have to take care of his finances right at least till next 14yrs.

Child is 10 yrs old now, we are not counting our increasing salary or sons increasing educational cost and Age change demands which should ideally increase 10% each year.

However, Calculation is

2Lac x 6yrs = 12Lac (Past yrs)            

2Lac x 14 yrs = 28 lacs (Future yrs)   Total = 40 Lac.

If you think what I am investing then – it’s the odds that I run around all time, the energy, the thoughts to make the child understand how to deal with present and future without one parent and importantly sticking in with the kid at all required minutes – This means I am investing my life in to making the events in this phase of his life work for him.


Also your husband mentioned 6 Lacs and that is his 1 year salary. 

Well I agree 1 year salary is huge to say give away ......

But that’s a pronounced salary, I have not verified it .Neither I wish to. My only say is earning less or more does not weaver you off your responsibilities of being a parent.

Similarly,

Just because I am a mother does not mean that I will have to contribute my entire life time as well as my lifetime’s salary to compensate the absence of another parent.   

Let’s assume if he has to do what I do now, then 4 lacs out of the 6 lac that he is talking would get exhausted in the paying for getting admission and the expenses mentioned above.

.

 

shweta   22 April 2015

He has to make arrangements for us to stay secured from where we can look forward to living life without worrying about shelter. Whereas I will still be spending my salary if it increase 10% each year.

The house will still belong to the child who bears his surname, when I will go long unnoticed.

Bringing up a child is like building an organization nothing comes easy and nothing comes cheap.

 

 

Samir N (General Queries) (Business)     22 April 2015

All the discussion above is interesting but has no basis in law whatsoever...


In practice, a husband will give  a certain percentage of cash or immediately convertible assets that he has, to his wife and child, for a one-time settlement. He usually does this if he is inclined to go in for remarriage so that he can restart with a clean slate or just wants to forget his ex- permanently. He has to up the ante to entice his ex-wife into such a one-time settlement. Why? Because there is no statutory provision in Indian law for a one-time divorce settlement or property division (unless purchased through joint earnings or standing in the name of both parties). What is provided in the law is maintenance (implied monthly) and right-to-residence (residence to stay - not a transfer of property). For such maintenance, and only for such a maintenance, accounting of income and expenses kick in.  You cannot approach a Judge with the kind of accounting you have presented to seek a one-time settlement - no matter how just and reasonable your calculations are. He will be totally out of jurisdiction to issue any order for a one-time settlement. He can only approve (not order) a mutual settlement involving a one-time payment. ...And such settlements are not based upon the need of the wife/child but the desperation of the husband...  and it works in the wife's favor. 


Husbands should not go in for one-time settlements unless they are iron-clad and very well drafted because there are just too many pitfalls in the law that allow a wife to approach Courts later despite such settlements.  

SuperHero (Manager)     22 April 2015

Oh God!!!

Sorry If I am being blunt or straight forward. I am not here to hurt you.

You have calculated the entire future of your Son.

How I see is there are many children on this earth with Single parent income.

There are children who don’t have both parents but still they are studying and working hard to make ends meet.

There are very poor people who can’t afford to send Children to private schools nor even to Govt schools.

There are great people who have studied and studying below the average income of an Indian household and have reached greater heights in their professions.

I am being a devil’s advocate here. God forbid nothing should happen like this.

What about Health insurance, Life Insurance and etc.,

 

Life is very short…I will stop here.


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