Airoli Estates 18 August 2017

confusing and complicated

as the title suggests, I have dug up the internet and spoken to a few, but couldn't get answers or case studies and everyone has a different answer. not one lawyer that I met seems to have any firm answers. thank u in advance.

my current scenario...
my wife filed for divorce, U/s 13, our son is with her. I applied for dismissal of the case U/s 2(2) of HMA. iam an ST, she is not. we had a marriage for 13 yrs and a son aged 10.
after I applied for dismissal, the opp lawyer came for mutual settlement and gave us their terms of consent. the case stands here as of now. even the judge said that either we find what law can dissolve our marriage or settle it mutually else he would have to dismiss the case.

my questions are.
1. if the case is dismissed can I go meet my son at his school, and can she take any action.
2. if the case is dismissed, what are her options for alimony and custody and under what act.
3. if dismissed, what are my options to meet my son and under what act.
4. what other options does she have if the case is dismissed and under which act.

pls reply as per points, iam already confused with vague replies.
thank you.

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12 Replies

Adv Radhika Mehta (Advocate) 18 August 2017

1. Your relation with your son does not depend on the dismissal of a case. You can always go and meet your child at school, unless your wife obtains a restaining order against you.

2. She can file for maintenance under the Hindu Adoptions & Maintenance Act and file for guardianship under the Guardians and Wards Act.

3. You can file a petition under the Guardians & Wards Act or the Minority and Guardians Act and move an Interim Application for access.

4. Since the provisions of HMA do not apply to your marriage, she can file a declatory suit for reliefs under the provisions of the Specific Relief Act.

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Airoli Estates 22 August 2017

thanks Ms. Mehta, how do you render your legal services?.

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Airoli Estates 22 August 2017

Ms. Mehta..
1. Can I get restraining order against my wife, that she cannot stop me from meeting my son.

2.Can I file for access as mentioned by you even if the court is indecisive of my wife's primary divorce petition, that includes divorce, child custody and temporary injunction of a share in property.
My wife has filed petition which includes the following...
(a). U/S 13/1 (ia) of HMA

(b). Custody U/S 26 of HMA and
U/S 7(1)g of FAMILY COURT ACT

(c). U.O 39R(1 )of CIVIL PROCEDURE CODE U/S 7(1)d of FAMILY COURT ACT

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Adv Radhika Mehta (Advocate) 22 August 2017

Once you get an order for access, then in any which way your wife cannot restrict you from meeting your son. If she does, it will be contempt of Court and there are remedies which are available to you.

You can file under the Guardians and Wards Act for custody of the minor child and access.

The reason your wife could not get the reliefs sought by her as the Hindu marriage Act is not applicable to STs.

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Airoli Estates 22 August 2017

as my wife has filed for divorce, child custody and temporary injunction under a single petition, is it true that I cannot file for child access under GWA?
that's what my lawyer says.
my lawyer says as all three of my wife'sapplications are under one petition, we have to wait for it to get dismissed....only then can I file for Custody and access. how correct is this?

thank you very much Ms. Mehta, you were of great help. what u suggested so far was also suggested to me by "men rights India"

Airoli Estates 22 August 2017

I would also like to officially take your services, if you have time for one more case.

Adv Radhika Mehta (Advocate) 22 August 2017

No, what your lawyer is saying is absolutely incorrect. You can move proceedings under GWA at any point of time.

Sure. Im practicing in Mumbai.

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Airoli Estates 22 August 2017

Mr. Singh, it was difficult to understand some parts of your post. I appreciate your time though. I'll reply as to what I understood.
1. my Intention was, is and never will be to break my family. But times are changing now, it's more about individuality, being solo and not about team work and togetherness. iam old school and I tried my best in all ways to be a family. nowadays even the slightest prick leads to divorce. to add to that we have our laws that are biased, and all emotions are abstract in the eyes of the court.
2. yes iam an ST, but not like what you may visualise as tribes in the forests. that was a time of my forefathers. iam very much born and brought up in Bombay. so our marriage was done as per any regular Hindu wedding. I did try to find out any customary or traditional way to approach this issue at my state but, couldn't find any nor does it have any prescribed laws under it.
All I want now is to be a father to my son, and my wife a mother to him. he is close to both of us.

(Guest)

Originally posted by : Ramesh Singh
	Its unfortunate, nowhere in your post, your intention is clear about divorce & child custody (not visitation), You try to protect yourself as Schedule Tribe Community, even though you are unable to disclose your customary marriage, whether is at your place of birth, as per traditions or somewhere else, where its recognized as per state's law. And in concern to child, Child Protection Rights Commission & Juvenile Justice Act is apply in your case. Plz check under which tribal community you belong in your State or Territory. Anyway you can send Pvt. Message to Adv. Radhika Mam to take help.

Very well observed by Mr. Ramesh Singh. Even otherwise also, hypothetical/academic questions do not have any background to make the author clarify question of the members. So, there is a good excuse also to say, "it was difficult to understand some parts of your post."

By the way where from the question of the caste S/T or O/C comes in your divorce case, even if the marriage was performed as per the HMA?

Airoli Estates 22 August 2017

and how do I send a Pvt message on this forum?? couldn't find any.

Airoli Estates 22 August 2017

sorry Mr. Singh and Jigyasu, iam really not sure what you both want from all this. If you have any questions, pls ask straight fwd questions and numbered questions. I'll answer all those within my reach and privacy. iam a very logical and practical person and I cannot read between lines.
if you are here to sit and judge people on their posts rather than help them, then I guess you are at the wrong place. We have Twitter and Facebook for that.
ask straight questions and get straight answers. Don't beat around the bush.

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Airoli Estates 23 August 2017

wow!!! :))
anyways...iam not here to play dumb charades or any guessing games.
so I officially close this post.
thank you very much Ms. Mehta, will contact you soon. sorry you had to deal with all this irrelevant discussions.

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