Legal Question in Family Law in India
Brief History of the case.
My wife went out of the house on 26.1.2010 raising some quarrel. She went to her aunt�s house for about a month and then returned to her mother�s house. Then she made a rented house for 3 months and then came back to her mother�s house and till date, she is staying with her mother.
Myself, my father and my mother, went to her mothers on day one itself i.e., 26.1.2010 and requested her to come back. We pleaded heavily with her mother and requested her to advise her daughter not to take such steps, since it will spoil her life, respect, son�s life and our life too. But till date she did not come back.
There was a conciliation meeting held on 21.2.2010 in her aunt�s house including some of their relatives and it was decided to put the things on hold for some time like 2-3 months.
During May-June 2010, she offered that if I am agreeable to leave the parents and go with her with separate house, she is ready to join me. Since I am the only son to my parents and parents are aged, I could not agree. She started threatening that if I don�t shift, she will go to court and/or police. She demanded my son should be with them.
When school for my son started in June, I brought my son back and he started going to school from my house. She demanded that my son to be left in her mother�s place on all holidays. It was not fully possible for me and I could not take him there for 2 Sundays. Before that, during school summer holidays from March to May, most of the times, my son was with her only i.e., her mother�s place.
On June 24th, I received summons from AMCC court to appear before the court under D.V. Act. My wife has gone to court making me as 1st Respondent, my father as 2nd Respondent and my mother as 3rd respondent. She has become the Petitioner. Her aunt (i.e., her mother�s younger sister) is the lawyer / advocate for her. She charged that we were not looking after her well and she says we harrassed / tortured her. By going to court, she is claiming custody of child, compensation for her, monthly maintenance for her, monthly maintenance for the child and a share in the property.
Apart from the above, she is threatening that she will go to police with 498a case against me.
Other details:
- I am a Govt. employee (Resp. 1)
- My father (Resp. 2) is aged 77 years and is retired.
- My mother (Resp. 3) is aged 71 years and is a house-wife.
- I got married in August 2000.
- My wife (Petitioner) is aged 36 years now and is working as a civil engineer in a private construction company. She is in job for the last 3 years and now also going for job and getting a handsome salary.
- My only son, aged 8 years, is going to school. I have (father) paid for the school fees and other expenses for this academic year.
- My wife�s aunt aged 51 years i.e., her mother�s younger sister, is an advocate and is advocate for my wife in this case.
- We have a own residential house where we are living now. It is in the name of my father and it is self-earned.
- We have not taken any dowry or other favours from the girls side at the time of marriage.
- The child is willing to stay with father.
I shall provide any other details required in this regard. Please help me to protect my family.
I shall be highly thankful to you, if you can provide clarification on the following.
Clarification required for:
1. Whether a close relative i.e., aunt (her mother�s own younger sister) can become the lawyer / advocate for her and whether she can take up the case in court of law ? If not so, can you please give some citations/reference.
2. Whether I (father) can have the custody of child? I am ready to take care of the child, including all expenses. I am ready to give undertaking if required. If so, please provide me some citations.
3. When the case is in the court, whether she can give a complaint u/s 498a in the police station ?
4. Since she is in job and has to go to office regularly, how she can take care of the child? Whether I (father) can take custody of child on these grounds? If so, please provide some citations.
5. Since my parents are aged, whether they can be dropped from the case, to reduce mental tension for them? If so, please provide some citations.
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2 Answers from Attorneys
The answers numerically of your queries mentioned herein above:-
1) Yes , the aunt can take up a case and plead before court.
2)You have to make out a case before the court that you as a father more competent to take care of your child . It all depends on how you plead your case.
3)Yes she can file a complaint before Crime against women cell which eventually would turn into a FIR by the police against you and your family.
4)This would be one of your grounds in the custody case besides other ones.
5)Yes they can be dropped from the case .
1. There is no bar on aunt being her attorney.
2. The custody issue is decided by courts keeping in mind "welfare" of the child. For a child above the age of 5, father is the natural guardian in Law. However, custody issue is independent of guardianship. Even if she gets custody, you may claim 'visitation' rights. Child's wishes are also required to be ascertained by the courts before passing any order. The court may also seek expert opinion to evaluable psychological impact on child in the event of separation from any of the parent.
3. In view of pending litigation, even though she may file a complaint, the police may not take any adverse action against you or your family members.
4. You may refer to answer at sr. no. 2.
5. Depending upon the relief claimed, an application may be made on their behalf for appropriate orders.
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