Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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(Guest)

Period of argument during contested divorce

Hello,

Can anyone advice me on the following aspects related to contested divorce.

I have filed my divorce case in 2011.. after fighting for 4 years recently the Lower court Judge has asked to initiate the agrument process.to my understanding i am almost at the edge of the closure.

My questions are:

1)When couples cant decide on childs custody during contested divorce then what is the outcome.

2)My  ex's lawyer claimed that in case we cant decide then i cant get divorcee as it will be pending..is it true??? then what is the meaning of going for contested divorce ???or is that she want me to give away my daughter's custody(BTW i am a female and the pertioner)

3)Who gets the child custody, my divorce diestnt have any alomony or property related issue it is only about the child's custody, and my daughter is 9 years old

4)How long the agrument can continue before closing the case. as the Judge has given very quick date.(withing 10 days)

Regards



Learning

 21 Replies


(Guest)

Also i would like to specify that i am a working mother .and my ex had raised a case of "Restitution of conjugal rights" which had failed earlier and got dismissed as he was not present in front the court to take necessary actions when asked for.

Neith he re filed it ..the case got dismissed in the year of 2012 Aug.

Regards

Kapil Chandna (Lawyer at Supreme Court of India)     21 July 2015

Mam,

 

Judge may sometimes taking into consideration the totallity of the facts and circumstances of the case order the child custody and the paramount consideration is the welfare of the child. Judge can ask the child as to where she want to stay as well.

Have you not requested for the custody of the child?

 

Warm Regards

Kapil Chandna Advocate

9899011450

 


(Guest)
Originally posted by : sg
Hello,

Can anyone advice me on the following aspects related to contested divorce.

I have filed my divorce case in 2011.. after fighting for 4 years recently the Lower court Judge has asked to initiate the agrument process.to my understanding i am almost at the edge of the closure.

My questions are:

1)When couples cant decide on childs custody during contested divorce then what is the outcome.

2)My  ex's lawyer claimed that in case we cant decide then i cant get divorcee as it will be pending..is it true??? then what is the meaning of going for contested divorce ???or is that she want me to give away my daughter's custody(BTW i am a female and the pertioner)

3)Who gets the child custody, my divorce diestnt have any alomony or property related issue it is only about the child's custody, and my daughter is 9 years old

4)How long the agrument can continue before closing the case. as the Judge has given very quick date.(withing 10 days)

Regards

 

You both got 9 year old dotter and you instead of playing with dotter, both playing divorce divorce? shame on you people.

Well,  if you both dont decide about custody then kid will be with whoever it is now with. 

And MCD means freedom in 6 months.  Whereas constested divorce means roaming to court for 7-8 years.  Argument will be done either in 1 days or 2 days max, second date may be in a month or two.  Argument cannot be extended life long.

If you are taking MCD and the condition of MCD itself is custody of child, then court will decide and give custody of kid to whoever has asked dotter in MCD petition.  Thats all.


(Guest)

Dear Replier.

Point no one nobody here is playing for divorce,,seems my points are not clear enough  neither i would like to explain what and why..

Nywz thanks for your reply..also i had clearly mentioned that we are fighting for the custody battle since last 5 years..where as both the parties want the custody...in such situation what would be the outcome during urgument and who gets the custody?

Also unless the custody gets finalised what happens to the divorce petition.

Regards


(Guest)

Dear Mr Kapil Chandra Sir,

Yes i have requested for the child's custody in my petion.

I am seeking Divorce and custody together. whereas my ex doestnt want to give me divorce..recently he said "if you want divorce then i need to give him the sole custody.

After 5 years of fighting on this..recently the Judge has called for the argument..(let me mention here that his evidence against me was not successful)

My questions remains as

Can he stop me in getting divorce in case i dont give away the child custody to him?

and who gets the childs custody..my daughter is 9 years old.

Regards

 

 

 

Regards

Adv. Chandrasekhar (Advocate)     22 July 2015

Madam, you are mixing up the things and hence you are getting confused.  As far as I understand your query, you filed only divorce case about 4 to 5 years back, and the evidence part is over and the judge is directing the parties to dispose off the divorce case.  Am I right?  If so, at the time of arguments, judge will give short dates, like 10 days, 15 days.  If it is only divorce case, the judge will hear the arguments on both sides and evaluate the evidence and will decide whether to grant divorce or not?  At this stage, unless a special application has been filed for custody of the children, the judge will not give any order about the custody of the children.  If they are living with you, they will live with you.  If your husband wants to get the custody of the children, he has to file custody case, which is a separate one, from the place, where the children are ordinarily living.  This case also will take 4 to 5 years.  In child custody case, if the child is intelligent enough, the court will ask the child with whom he/she would like to live.  Keeping in view of the best interests of the child, the custody will be given.  If your husband is bargaining to give you divorce in return to the custody of the child, you need not to accept for that bargain, if you want your children with you and you are confident that you will win the divorce case.  That much I want to say, after trying to understand your question.   Best wishes.

S K KARNjhc (Legal Adviser)     25 July 2015

I do agree with learned lawyer


(Guest)

Dear Mr Chandrasekher, Thank you so much for your valuable reply. when i filed the case for divorce i filed for child custody along with where as my ex husband tried to justify why cant i take care of my child being a working mother but "NO SEPARATE CHILD CUSTODY CASE" also he had lost the RCR case couple of years back.

In such situation will by divorce be held up till date he file for a custody/ or costody issue between gets completely sorted out.as he is bargaining that i will only get the divorce if i give away my child. is it true??can the divorce case be pending because of this?

Samir N (General Queries) (Business)     28 July 2015

@sg, you have raised a very interesting legal question in your original post. The key is how you have worded your prayers and not what allegations and demands you have avered in your petition. There are several Supreme Court Judgments that state that you can only get relief that you have specifically prayed for.  For example, Manoharlal (Dead) by LRs vs.Ugrasen (Dead) by LRs and others, (2010) 11 SCC 557. So, first, make sure that your prayers in your petition are worded correctly and specifically asks for child custody.  


 Also, while praying for a relief that you want is mandatory, just because you have prayed for a relief, does not mean that the Judge will rule on it!


So, how do you ensure that you get a judgment on an issue that you have prayed for, e.g., custody? Well, somewhere during the four or five years period, now that the Judge wants to hold arguments, the Judge must have framed the issues. FRAMING OF ISSUES is a critical phase and is based upon prayers in the petition or applications filed, though strictly speaking, applications must be connected to prayers in the petition. If an issue, such as child custody, was not framed, then you need to approach the Judge and file an application to frame that as an issue. I am not too sure if there are any time restrictions for doing so. In any event, the earlier the better. 


As for who gets custody, thats a question which requires the Judge to take many parameters into consideration. Admittedly, I am not qualified to comment on that subject. However, if the Judge has framed divorce and child custody as two issues then he will certainly rule on them. Neither the Judge nor your husband cannot hold a judgment on divorce in limbo until you consent to giving up custody!


Hope this helps... I am not an advocate and advocates in this forum like to pounce on me because I point out significant points that they miss or do not understand/know!

Samir N (General Queries) (Business)     28 July 2015

Typo Correction: "Neither the Judge nor your husband can hold a judgment on divorce in limbo until you consent to giving up custody!"


(Guest)

Dear Seniors,

As per your guidence i hace seved my argument period ..and the judgement will be out soon.

Meanwhile i have few quaries.

  • In case i loose the case surely i will move to HC..in the mean time (90 days) can my Husband forcefully take away my daughter(9 years) from me(to mention here i sent my daughter to him on weekends till date) how can i guard me and child to undergo any kind of harrasment.
  • What is the usual time taken in HC to close a MAT case? is it same like a nightmare of 5 years again?
  • What should be the best weapon for me to win the case this time. in the LC it was against mental and physical cruelty and unfortunately i didnt file a 498A against him.though he filed for RCR against me which got dismissed due to no action taken against me when it went ex party.

Please suggest.

Best Regards

SG


(Guest)
Dear Seniors, As per your guidance i have served my argument period ..and the judgement will be out soon. Meanwhile i have few queries. In case i loose the case surely i will move to HC..in the mean time (90 days) can my Husband forcefully take away my daughter(9 years) from me(to mention here i sent my daughter to him on weekends till date) how can i guard me and child to undergo any kind of harassment. What is the usual time taken in HC to close a MAT case? is it same like a nightmare of 5 years again? What should be the best weapon for me to win the case this time. in the LC it was against mental and physical cruelty and unfortunately i didn't file a 498A against him.though he filed for RCR against me which got dismissed due to no action taken against me when it went ex party. Please advice. Best Regards

Samir N (General Queries) (Business)     05 September 2015

In your divorce proceeding, was custody not a issue that was framed? If yes, wait for the judgment. If not, file a fresh petition seeking custody of the child. The Court will decide. As for HC appeal, first it will be heard for getting admitted. If admitted, it will take its own time. It all depends on the case and how your advocate or you expedite the proceedings. 


As for filing 498a, I think your failure was "fortunately" and not "unfortunately" as you term it. Some semblance of relationship will exist between you and husband now. If you had filed 498a or any criminal case, that would have been the end of any future relationship betwen the two of you... which is required in the interest of your child.


You sound very aggressive... that is not the best approach to resolve issues when a child is involved.

 


(Guest)

Dear Sir,

I did seek child custody along with my divorce petition.But my husband didn't as he does not want divorce though in between he told me to give away child custody then only he will give divorce.He filed RCR against me but his case got dismissed in 2012 (RCR was ex party against me but he didnt turn up to take action hence the judge called it dismissed)

Regards


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