Divorce & child access

Dear,

Yes you can file the RCR and also file a petition for Child Custody, and in so far as the maintenance is concerned if your wife is earning a handsome amount then the court will even refuse to grant alimony.

Advocate Kapil Chandna

9899011450

Originally posted by : Naresh Kumar
	Respected Lawyers / Fathers fighting for Child Access I have gone through 100’s of posting and responses and I should thank you for the valuable insight. I would brief my situation as below. I live in Delhi and wife left matrimonial home leaving behind  2 year daughter and started living with her parents at Bangalore but  maybe due to pressure from her family along with her parents they came to Delhi after three weeks’ time and approached local police station and put various false complaint. Police called me to Police station and asked me to hand over the child, which I did Either you dont have guts or you get scared too easily.  You have a police syndrome.  You are talking as if you were threatened at gunpoint by police and you had to hand over the kid to your wife.  That was the biggest mistake you did.  Nobody can force you to handover kid without court orders.  Only if they have court order stating the same can only then they ask you to handover kid.  It was a foolish mistake.  Police cannot do anything if you would have refused to give kid to wife.  and they left to Bangalore. After that I had called her many times and requested her to come back but instead she asks me to come to Bangalore and live there. It has been 6 months now and I have tried my level best to resolve the issues between me and my wife but she is not willing to come over. I am really concerned about my daughter and I wish she get love and affection from both the parent so that she can grow normal as other children’s.   My heartfelt sympathies with you.  I can very well understand what you are going through. I have gone the document with regards to Child Access and custody guideline approved by Bombay High Court. My question is as under: 1)   1. Shall I file RCR? Its totally your wish.  Only if you wish to bring wife back, and that too if she agrees to come back and cohabit with you, only then file a RCR petition.  Not otherwise.  Even if you file RCR petition, and court passes an order in favor of you, it necessarily does not mean that wife will join you back.  It is left to her will and wish and no court can make her join you by force.  In other words, RCR is a toothless tiger, a useless piece of paper on which you can file a divorce petition saying that I called back wife, but wife is not interested to join me back, hence I need divorce.  2.2.  Since I am living in Delhi it is not possible for me to visit weekdays and weekends due to which I am afraid that my daughter will get distanced from myself. What relief can I can pray with regards to child access? Opportunity favors the prepared.  You are giving silly reasons not being able to meet kiddie. Some more time and some more foolish reasons as above that you have given and no doubt kiddie forget you completely.  Ask for child custody and child visitation rights.  Though you wont get child custody as kiddie is small, but can come back to you at age 7, its totally dependent on how you develop rapport with kiddie from now, so that kiddie when asked by the judge should be in a position to tell that it want Pappa and wants to stay with pappa. Till then file child visitation rights case and keep following up with case, also try to meet up with kiddie without giving silly reasons like above.  With the current situation stop expecting that mother of kiddie will come to your place to show the kid to you.  3)    3.Our Marriage lasted for 5 years now and she is well educated and has work experience. How much alimony I should pay. (I am ready to pay all the amount for child). .If she is or was working, show to court the same, salary slips, bank statement, ask for call of records from her employer through court.  But for kid you both need to pay equally.  If she has no income at all, then you will have to pay money to kiddie monthly, but wife should give expenditure statement to court about kid, and looking into your income [provide IT returns, salary slip minus expenditure = take home income for court to arrive at what amount you have to cough up each month for kids expenses] Thank You in advance, any advice would be highly appreciated.

.Inspite of all of the above, my suggestion would be, try and reconcile with wife.  You have put efforts, but dont give up.  Its the question of childs future.  Due to ego issues, dont ruin innocent childs future.  Somehow try to bring back wife, forget what parentage, relatives opinions, and differences between you both need to be forgotten and a clean start be made, just for the sake of kid, as kids whose parents have been divorced, seperated end up being on the wrong side of law, grow to be trouble makers, anti-social elements, dont have faith in parents, dont have faith in marriage and reap the disadvantages of not having parental love and affection.  You both sit and think about what I have said and come to a decision to join back.  forget past differences, move together in life..

Before answering your pointed questions, I would like to know that what job you are doing in Delhi and whether it is a transferable job to bangalore or you can get an equivalent and good job in bangalore.  Next question is despite your unbounded affection towards your child, what is resisting you to go and stay in Bangalore.  Above all, the most important question is that what is that particular issue which separated you even after 5 years of matrimonnial life and also having a girl child out of wedlock.  Till these questions, especially the last one is not answered frankly, the permanent solution for your problem cannot be found out.  Now answers to your pointed questions:

Shall I file RCR?

Yes. You can. If she wants to avoid to come to Delhi, she may go to S.C. and seek transfer of that case to Bangalore.  Be clear first yourself that why you are going for RCR.  If you expect that by force of legal dictum you can bring her back to Delhi, it is mirage.  If you see it as a preliminary step to go for divorce under Section 13-A later on, it is o.k.  Or otherwise to scuttle any maintenance case to be filed by her, then also it is o.k. But first find out what you want under RCR. 

2.2. Since I am living in Delhi it is not possible for me to visit weekdays and weekends due to which I am afraid that my daughter will get distanced from myself. What relief can I can pray with regards to child access?

   You may be aware as the child is at present residing in Bangalore, you have to file case for custody and visitation rights at Bangalore.  You will definitely get visitation rights.  You can spread them as two months, half a month in holidays, one month in summer days and half a month in winter holidays.  If it is not possible for the child to come to delhi and stay there for these many days, you have to tailor suit your holidays and stay in Bangalore to enjoy visitation rights.  Visitation rights can be modified from time to time with the order of the court according to the needs and convenience of the litigants. 

3) 3.Our Marriage lasted for 5 years now and she is well educated and has work experience. How much alimony I should pay. (I am ready to pay all the amount for child).

  If she is not working you have to pay maintenance depending upon your earnings.  If she is working you need not to pay.  But again, I come to main point.  Find out the real reason for estrangement and try to solve that with maturity and forgoing the egoistic attitudes from both sides.

Thank You for the advice.

In the past few weeks I tried my level best but my wife is not ready to come. I cannot leave Delhi because I am settled in Delhi and my aged parents are staying with me. Also she has started verbally abusing me . I also communicated to her about the mental trauma  the child has to go through if we get separated but my wife is not ready to listen. She is of the opinion that she and her family is good enough to keep my daughter happy.

The main reason is that she is not frank and does not open up and speak about her feeling or any issues she is having with me or my family and resolve them. Instead she gets angry and takes the anger on the child for no reason.

I had thought over it and decided that there is no point in keeping this relationship. I have few question as below

1) Since all of you rightly advised I am not interested in RCR. What action I should take for divorce if she is not ready for MCD?

2) If it is going to be contested divorce, on an average how long it would last?

3) Do I have to bare the litigation expenses of my wife?

4) I am ready to bare entire maintenance expenses of my child but want to avoid paying to my wife as she is capable of earning for herself as she is highly qualified and was previous working.

5) I am sure she will file DV etc. How to handle such false allegation?

Thank you in advance

Dear Naresh,

Do not file anything from your side. Let it come from your wife's side. Know their intention. Do not aggravate or incite your wife into filing DV & 498a and host to other sections that come as a package. Let time take its own course.

Life anyhow is affected. Do not let it spiral downward. Since they got away with the child first time around without any litigation expenses, they may try the same route first for whatever their intention once more.

Do not file for Divorce from your side. I repeat. Do Not. RCR is useless unless u plan to use it as a ground for Divorce.

I would advice that you focus on your health and immerse yourself in your work completely and as far as possible avoid negative thoughts.

Regards,

Anil

It is strange anilcochin asked a question about his legal problem in some other thread regarding attachment of his property by wife.  Here, he gives very authoritative legal advice without bothering what consequences will fall on that unfortunate enquirer who is facing a lot of problems, if his legal advice turns to be wrong.  He says do not file divorce case. He repeats this emphatically.  Next he scoffs about RCR.  But he does not help Naresh Kumar, who wants to meet his daughter and enjoy her company by custody or visitation.  How enquirer in one thread turns into expert to give advice to others? O.K.  I leave it like that.  Sh. Naresh, if you want to file divorce case, you can file it in Delhi because you both last resided together here.  But your wife may file maintenance case or domestic violence case in Bangalore and also go to supreme court for transfer of your divorce case to bangalore.  If you want to file custody case, it lies only in Bangalore.  It is upto you what you want to do.