karthik 27 June 2017

Need advice

Hi . I am here for asking legal advice regarding divorce. I am married on March 2012. I am living in join family with my father (dialysis patient) and mother. My wife forced me to see separate home which i promised her to take at right time because my father was sick and I am only son. My elder sister was married and she lives in abroad. My wife unwillingly agreed. After then she wants to join job. so we encouraged her by allowing her to join bank courses, TNPSC courses in Chennai. Later on she got job in private bank in 2015. After then she totally changed. She decided to dominate me along with her parents and relatives and forcing me to leave my parents. At one point being working in Chennai, she refused to come home itself. One fine day (15-9-2015), at my second son naming function, we are all gathered. My first son voluntarily came with us which her relatives, her parents acknowledged. So I started schooling for my son in my town itself . After then my wife and all her relatives created situation that I wantedly separated her from first son. I just consoled them that I didnt separate her and first son, I just take care of him, join him in school and allowed her freely to come and see her son. But they took it in wrong way that I am blackmailing her by separating her and son. She didn’t come home after then. On Dec 2016 she came with her relatives and tried to point fault on us and demanded my first son. There was quarrel and they agreed to live my first son with me. She came then and there between March 2015 and March 2017 march to see her son alone. After then she applied transfer to her native and one day(27-3-2017) she took away my son from home without knowledge of us. When we inquired about this to her relatives and her parents , they are all neglecting to speak with me at all. We went to her native place to speak regarding this, but they put false complaint over me and my parents in their local police station. They are using the law that mother is the natural guardian of child and if i want I wish to get transfer to her area. I am completely disappointed with this. There in local police station we both gave written statement that will solve it mutually. After then within two days her relative sent a complaint to my office (I am working in PSU-BSNL) , CM cell-Tamilnadu to take action against me. Since proper evidences are not there they can't do anything beyond this. Shall I file RCR for safety and wait for their reaction or how to proceed. Shall I wait for one year to get complete to file RCR or Divorce due to desertion. Kindly suggest me in this issue. I took care of my first son from sep 2015 to march 2017. Are there any way to get hold of my son (5years old) from her atleast. I am really frustrated.

Thanks & Regards,

S.Karthik

wanttolive29@gmail.com

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5 Replies

Rocky Smith (Instructor @ Calcutta (rockysmith4calcutta@gmail.com)) 28 June 2017

Dear Quest,

Never file RCR,

File petition u/s 144 CrPC for life and personal safety of you and your old parents from nuisance of apprehended danger from your wife. File if before your district court.

Know about this CrPC more on the following link

https://indiankanoon.org/doc/930621/

More tips below -

https://www.facebook.com/RockySmith4Calcutta

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Raveena Kataria (Advocate ) 19 July 2017

You have stated, "She decided to dominate me along with her parents and relatives and forcing me to leave my parents." Well, the wife forcing her husband to leave his parents has been deemed as cruelty recently by the HC, based on which you can apply for a divorce petition on grounds of cruelty, (i.e. u/s 13(i)(a) of HMA.)

The custody of the child, however, rests upon the discretion of the court. It's well acknowledged that the decision of the court has the welfare of the child and not the interests of the parents as the object of paramount importance. However, you can make your case in your petition as to why you should be offered the custody of the child. The fact that you took care of your child for 2 years (along with evidence, for instance, child's school reports,) is likely to add weight to your case. However, I would suggest that you take help of any local advocate so he/she can assist you through all the proceedings.

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karthik 23 July 2017

Hi Rocky Smith, Raveena Kataria,

Thanks for your precious reply. Those incidents happened in April 2017. Now already 3months completed. They thought by provoking me I will do bad things. My senior officers told not to take any step at that time because I have promotion cum training by august 2017 month. Can I file 144crpc now. I thought to issue RCR after six months. Once she replied negatively (like false 498a or some other law) I may proceed for divorce under mental cruelty. So that I am thinking that I may get custody rights of my beloved kids. Even if she replied positively that she wants reunion I may claim my kid stating that "brigde for our family life are our children and If you really want reunion give children i will take care of them. Only then you can ignite a belief that you really want reunion." I had already taken care of my first boy. So things may come in my favour. Correct me if I am wrong. These are my assumptions only. Can I issue RCR now(that is 3 months), will it affect my promotion cum training? Should I have to take anticipatory bail? Shall I start these process after completion of my training?. The duration of my training is 3 months. So totally It covers 6 months if I start these process after training. Thanks in advance. Awaiting for your precious reply.

Adv Radhika Mehta (Advocate) 23 July 2017

It is not necessary that if you file RCR, then you will custody of your children. But please tell me, what is stopping you from going and getting your child back? Presently there is no Court case pending, so this is the best time. 3 months is a long time. You should not waste any more time. You can even directly file for custody in your local court under the Guardians and Wards Act. I fail to understand why you are attaching much more significance to your training rather than your children.. Dont get me wrong but a person who has been deprived of the custody of his child who he took care of for 2 years will be much more active and will do anything for getting his kid back and definately not sit idle for 3 months. Either go and get the child back or file a case for custody and most importantly, explain the delay of 3 months.

Desertion can be filed only after 2 years.

Who will get Custody that can be a tricky question. If you still had the custody of elder son, you had a shot at winning but now that you let him go so easily, it all depends on how you prove your case. If you are able to prove that your wife is an unfit mother or a characterless woman, then maye the Custody may be awarded to you, else in most cases Courts are more inclined towards the mother.

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karthik 24 July 2017

Hi,

Thankyou Radhika Metha madam for your kind advice.

I would like to mention that my wife along with her father, mother, relatives draged me to the women police station and I was like goat which is going to be beheaded in temple. I was severly criticised by their relatives with bad words also. One of my parents friend arranged advocate at that time (God helped me). After then his reatives put complain against me to TN CM cell, my BSNL office? How can I go after this. My wife is clever. She wont give divorce and she will not come home. She will say by name sake that she is willing to live together. In police station, she played drama that she will come get transfer within 3 months and she will come with me. So I waited for this 3 months. Now 3 months completed. She didnot turnup. How long she can play like this. I have two boys. All are mentioning that I may get only visiting rights over my beloved kids. Is there any possibility of getting legal rights to one child? Atleast I have one grip to live.