Sundar (NA) 03 February 2013

Please help...despirate...seeking matrimonial legal advice

Dear Lerned members,

I'm a hindu got married in Nov 2008 to a hindu.It was an arranged marriage..My wife went to her home when she was 3 months pregnant in 2010 and refused to come back. My herculian efforts failed due to fanning and fuelling by my in laws. I reached a compromise after the delivary of the girl child in oct 2010 and agreed to move seperatly(rented) near their parents home in Nov 2011. Even after that the fanning and fuelling continued and my wife was continusly insulting me. i tolerated everything just for the sake of welfare if the child. She just stayed less than a month and got concieved again, but my inlaws poisened her though and made her abort the child in Jan 2012. After that she never returned back and took away all her belonging to her parents place is not giving access to the child. She says if i want to see the child i should come to her parents home. I was not willing to visit their parents home as they consistently threatned me that her daughter will pull out of marriage and also were talking ill of even their relatives. There has not been any sort of contact or communication since April 2012. She has been puposefully avoiding me and also put the child in a play school which people nearby informed me. Moreover she has all the time in the world to go on tour with her father and to her relatives home and attending party. She abruptly told that she only wants a chaste life and NOT READY TO ADJUST. I've recorded this conversation of this. She even told me that she will not give the child to me as the child will stay with mother only. (background.....as one of her friend had filed a false 498a and divorce petition and the child rights have been given to the mother. the divorce case is still pending. Also one of their relatives got divorced after 17yrs and the girl child who was 15yrs at the time of divorce was handed over to the mother. )

I've started feeling that there is no logic in continueing this relationship after experiencing this sought of paramount cruelty. Please advice as there is no point in sending RCR as even after moving seperatly. I tolerated every insult and humiliation only for the sake of the child. Since there is no access to my child, what is the point.

It has been 4 yrs and 3 months since we got married and she just spent 1.2 years with me before she got concieved first child and just 25 days(Nov 2011-Dec 2011).

Seeking despirate advice.

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1 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 03 February 2013

Dear Querist

what do you want form us?

as per your information, my opinion is , if you are finaly decided to live without her and want your child back, you should filed a petition for child custody u/s 25 of Guardian And Wards Act along with interim application u/s 12 of The Act. you can also file a divorce petition based on cruelty u/s 13 (1)(ia) of Hindu marriage Act, 1955

12. Power to make interlocutory order for production of minor and interim protection of person and property.-

(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub- section (1) for her

1. See now the Code of Civil Procedure, 1908 (5 of 1908 ). 2. Subs. by Act 3 of 1951, s. 3 and Sch., for" a Part A State or a Part C State".

production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this section shall authorize--

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or

(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.

25. Title of guardian to custody of ward.-

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the 1[ Code of Criminal Procedure, 1882 (10 of 1882 ).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

And if you think that you can adjust with her again then file a RCR petition before the court.

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