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SukrishRam (Manager)     10 August 2011

Will the court accept my divorce petition?

Experts & Advisors,

My wife left my home during baby's delivery period 2 years back. after that she didnt return to my home and not showing interest. I filed the RCR 1.5 year back and last Decemeber 2010 court accepted the RCR and issued order in favour to me as she set to be exparte.

As I was not living with her for the past 2 years, Can I file the divorce petition or do I need to wait till RCR period of 1 year (Dec 2011) ?

I am worried as she might goto US with my kid, so I wanted to file before it happens.

Please advice.



Learning

 2 Replies

Adv. Chandrasekhar (Advocate)     10 August 2011

you are not entitled to file divorce petition till one year passed after getting the decree of RCR on the ground that RCR has not been complied with.  Any how, your concern is for child's custody and neither RCR decree nor pending divorce petition will solve your problem.  You are advised to engage a good advocate and file a petition under Hindu Minority and Guardianship Act, 1956 or under Guardians and Wards Act, 1890.  In this, you can file interim application seeking immediate relief.  Further, in this, you move appropriate application seeking the surrender of her and child's passport during the pendency of the petition on the ground that you are apprehending her departure from the country.  In addition to this, you write an application to passport authorities that you are withholding your consent to issue passport to the child due to the pendency of custody case and even then, if they issue passport, the writ case will be filed against them.   

Adv Archana Deshmukh (Practicing Advocate)     10 August 2011

For your child you can file a petition under the Guardians and wards Act seeking visitation rights. For divorce, wait for completion of one year from the date of RCR decree.


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