NeedHelpPlz (na) 30 May 2013

Need help regarding child custody & maintainance

Hello & Thanks for creating such a wonderful forum help people like me seeking some clarity,

Ours was a love marriage with consent of both families in 2009. It was fine until 3months when my in-laws started ill treating me especially my MIL who is very cranky and picks on small small issues. First my husband was very supportive but later on started getting too much influenced by his family members who never wanted us to see us happy togather. he started abusing me shouting at me publicly and humilated me infront of all family members treated me as a stranger at home.It goes on in my pregnancy in 2010 when he forcefully asked me to sign as co-applicant for a site when i was willing to pay EMI but wanted to get the property to be in joint due to insecurity created by this relationship. He harssed me to the core & i had to sign that time fearing our break up and infear of being left out in society.he used to shout at me in phone saying i should sign for General power of autorny as i was in medical rest due to his harassment in my parents place.

lately in 2011 after i returned back after maternity becuase my MIL creating issue he actually left me & my daughter in door step of my parents and left early in the morning wo even talking to my parents. then after 2months he came back threatening i need to take my daughter than family members sat togather and with everyones consent he took me back.

Now again in 2012 he called up my father 1 day night asking him to take me away next day. my parents came and he said i can't take anymore and if im still there in his place he'l not be responsilble for what will happen to me. Intiatlly my parents resented to take me and tried to console but it was too much soo they had to bring me as he said he was not responsible if anything happens to me after they leave.

Since past 1.5yrs i am staying with my parents with my daughter who is now 2.5 years. My family has tried lot to console him and his family but they always reacted saying if she wants she can come we dont need kinds. After few months also got to know that he is in contact with a ex-colleague i could trace it thro call history and also heard of his behaviour with another girl in office. So have now decided to stay away and take Divorce from him. Earlier he was not willing to take me now ones he came to know about my decision he has started sending me sms which shows he is soo much considerate & wants to patch up kinds but when he comes he always shouts ,humiliates me and my family.

i didnt expect i would divorce him or any thought i dont have any evidence to show that. But he is very intelligent in all those now trying to prove he is trying with is all fake not sure why he wants to do it. becuase his own extended family members started asking them questions as to why they are treating or handling our relationship in this way.

Their is lots to say but my question is now

1. If i ask for Divorce will all his evidence of trying to reconcile work becuase other things he does we dont have any evidence. He might as well say no i want to stay with her but its really a harsement for me, not just him my in-laws and brothers family also involved.

2. Now he comes and tells when ever i want i will take my daughter and go when i have vacation. but i dont feel her safe in his place. infact no1 is bothered about her its just him trying to do all these.Can he claim for child custody with all these?

3. That relationship i mentioned will it help me in divorce? Becuase i can look for call history nothing else. he says he just talks to her nothing more than that. What can i do to get more information on the same? he used to talk to her late nights for hours.

4. As i am working i get decent salary can i still opt for maintainace?

Now my life is my daughter i cant live wo her. please help me how i can fight to get justice.He ones said i can spend crores and i will take my daughter. I am not that settled but i can maintain my family. I am very worried with fever of separation from her.

5. i kept quite wo lodging an FIR or sending notice all these days. now i no more fear for society its my family my daughter which is more now. will my silence for 1.5yrs cause problem? i tried a lot before to save our relationship but i dont have any evidence for those.

6. Please advise whether i can straight away send a notice as someone advised?

Please advise. Thanks in advance

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7 Replies

(Guest)

First go through this..

The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.

Adultery – The act of indulging in any kind of s*xual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.

Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse s*xual act and such are included under cruelty.

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.

Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.

Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.

Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The s*xually transmitted diseases like AIDS are accounted to be venereal diseases.

Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.

Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.

No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.

The following are the grounds for divorce in India on which a petition can be filed only by the wife.

If the husband has indulged in rape, bestiality and sodomy.
If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive, the first wife can seek for a divorce.
A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.

Based on the Dissolution of Muslim Marriage act, 1939, a Muslim woman can seek divorce on the following grounds for divorce in India.

The husband’s whereabouts are unknown for a period of four years.
The husband has failed to provide maintenance to the wife for at least two years.
The husband has been under imprisonment for seven or more years.
The husband is unable to meet the marital obligations.
If the girl is married before fifteen and decides to end the relationship before she turns eighteen.
The husband indulges in acts of cruelty.

Let us check out the following grounds of divorce mentioned under the Indian Divorce Act, 1869.

Adultery
Conversion to another religion
One of the couples suffering from an unsound mind, leprosy or communicable venereal disease for at least two years before the filing of the divorce.
Not been seen or heard alive for the period of seven or more years.
Failure in observing the restitution of conjugal rights for at least two years.
Inflicting cruelty and giving rise to mental anxiety that can be injurious to health and life.
Wife can file a divorce based on the grounds of rape, sodomy and bestiality.

The following are the grounds for divorce in India included in the Parsi Marriage and Divorce Act, 1936 and the amendment of the same in 1988.

Continuous absence of seven years.
Non-consummation of marriage within one year.
Unsound mind provided the other spouse was unaware of the fact at the time of marriage and the divorce must be filed within three years of marriage.
Pregnancy by some other man provided the husband was unaware of the incident during the time of marriage and that he must not have undergone s*xual intercourse after he came to know about the situation. The divorce must be filed within two years of marriage.
Adultery, bigamy, fornication, rape, or any other type of perverse s*xual act.
Act of cruelty
Suffering from venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more
Desertion for two or more years
Non-resumption of cohabitation after passing an order of maintenance or a decree of judicial separation.

Now you think for yourself how you can get divorce. The terms explained by you, not hold good to get divorce. Its better to convince him for MCD.

jaiprat (employee) 30 May 2013

Dear Madam ,

I am not a legal advicer but as an individual i would advice you to go for a MD rather than spending your time .money and enegry on unwanted cases , FIR etc .if you have really made up for Divorce speak to your partner thro court and get Mutual Divorce and be happy .

stanley (Freedom) 30 May 2013

When the Marriage detoriates finger pointing starts at one another . Divorce will take years provided thatthe above grounds are proved . As regards to child custody welfare of the child would be taken into consideration before awarding the same and also the child would be asked but irrespective of the above facts visitation would be granted to either of them in case custody is awarded to one than visitation would be granted to the other . Better settle for MCD which gets over within a period of 6 months and part peacefully .

As you are earning you would not get maintanence but for the child maintanence is co- extensive and both would have to provide .

NeedHelpPlz (na) 04 June 2013

Thank you for all the suggestions & quick response.

Is their any law which states a girl child should be with her mom for 8/12years in case of divorce, Please advise.

(Guest)

Madam, am not sure there is such a law but with her being agirl child you will get her custody but he will get visitation rights.Unless you can show it is dangerous for her to see him and I don`t think you have evidence for that.

NeedHelpPlz (na) 04 June 2013

Thank you... please help me understand as she is a girl child i would be getting her custody right? because he threatens me of taking her away always

(Guest)

That is correct.Unless he can show lots of evidence that you are an unfit mother and it is not safe for your daughter to be with you(eg,you don`t feed the child,give her proper vaccination,don`t send her to school etc)

Gir