Legal Question in Family Law in India

Dear Sir/Madam,

I'm married for last 12 years now and have 2 sons aged 10 and 7. Till last year we were leading a happy married life.

Since last one year there has been a marital discord between us due to my wife's inclination towards migration to Canada on Permanent Residency, whereas I'm not interested to go. Her sister is settled there. She had been persuading/pressurising me to migrate, but i dont want to leave my PSU job (i may not be earning much but its enough to lead a decent life) as I checked and found that the job scene out there is not very good and one has to do odd jobs. Her point is that kids education is taken care by the State there and for kids future we should go. I was convincing her that we can secure kids future here as well although competition is much more here, but situation is not all that bad here. She later started convincing me that I should allow her and kids to migrate on 'Separated status' and give her a NOC to take kids with her, which I refused. The reason she gave was that for single mothers, the Canada Govt gives Dole money and baby sitting etc would be taken care by the State there. Her mother also tried convincing me but I refused to let her go on separated status.

However in order to diffuse the situation, I agreed for applying for entire family on PR to Canada with she as primary applicant, and on marital status instead of separated status. She applied through a consultant and I took care of all the expenses (about 75,000) for the same. The matter is in progress currently and it takes 6 months to 1 year time for PR application to get processed.

Anyways, the arguments continued and she constantly used to fight with me over the issue. So much so that she stopped sharing the room also. The distance kept on increasing and we used to constantly fight over this issue and later on just anything.

Then one night she called the police after an argument over not giving me dinner she went ahead with registering a complaint (NC) of harassment against me. Next morning, I also gave a letter to the police that I'm moving out of the house citing the above situation and harassment to me on this Canada immigration issue.

I have been staying separately since then (about 2 months now). I'm taking responsibility of eductaion and other needs of my children, but I'm not paying anything to her now. She keeps threating me of filing a maintenence suit/divorce suit against me, but haven't done that yet.

She had been employed for last 3 years (teacher in a convent school), but took up a full time course last year (B.Ed) and is currently undergoing that. I've taken care of the expenses of the same. However, she has kept all my savings (about 3 lakhs kept in her account in form of term deposit).

My queries are as under :

1. How can I prevent my children from going to Canada? Currently children are staying with her, and I meet them only on weekends when I go to pick them up.

2. In case our patch-up happens due to family intervention, what precautions should I take while reconciling, so as to prevent myself from any future harassment/police case. She had earlier threatened me and my parents that she will bang her head against a wall and have all 3 of us arrested. My parents had visited us in Sep'09 for few days, on her request to broker peace between us, but failed to convince her. After marriage, I've not stayed with my parents anytime due to my transferable job.

3. Can she claim maintenance without filing for a divorce?

4. If she is employable, can she still claim maintenance? If yes, then what is the lower and upper limit of the same?

5. If I keep children with me, do I still have to give her maintenance?

6. If she gets a job here now, is the maintenance still applicable?


Asked on 1/02/10, 2:22 am

1 Answer from Attorneys
Sudershan Goel India Law Offices of Sudershan Goel - Advocate

(1) You may withdraw your consent for Immigration of your children by informing the Canadian High Commission;

(2) Try to maintain coordial relationshipwith her and the family.

(3) Yes, she can. Maintenance can be claimed u/s 125 Cr P. C and/or under DVA.

(4) Yes, she is entitled to live life as per your standard of living; and the gap amount, if any, may be claimed from you.

(5) It is not your discretion to keep the children with you; that may have to be either a mutual / joint decision or a court order. She may still claim maintenance for herself.

(6) Yes, depending upon the difference between the earnings of you two.

Try to avoid litigation. If she wishes to migrate to Canada with children, it may be good for the future/higher education of your children as also for her mental happiness; once she has set her aims at living in Canada, you may not be able to keep her happy here. If she can take good care of the kids, you should try to make appropriate adjustments.

Read more
Answered on 1/02/10, 8:10 am


Related Questions & Answers

More Family Law, Divorce, Child Custody and Adoption questions and answers in India