Legal Question in Family Law in India

LawGuru Answers About Support Help

Status: Approved 4/04/10, 9:32 pm Question

here is a situation:

the wife has run away from her family home with the child and is staying with parents for some months. she has stopped all communication and does not even allow the 3.5 yrs old child to talk to her father. she seeks divorce. right now there are no legalities initiated from either side. she has also admitted the child in a school without seeking consent of the father or even not bothered to inform him. under these circumstances, can the father come and demand the child? it is a girl child and 3.5 yrs old. can the father take the child with him? if so, would the mother have to seek the child's custody through court? does the father not have the right over decisions like schooling of the child etc? is it assumed that automatically the girl child's custody of below 5 yrs automatically is with the mother or does she have to seek the court's permission if the father takes the child away? is there any law that can stop the father from taking the child with him? if he can be stopped, under whatg legal provision? can he seek injunction after taking the child? there is no way it can be proved that the mother is incapable of caring for the child. she is not earning. she doesn't have any valid fault ground on which she can contest divorce. please advise. Sudesrsha Goel saab, and rajiv Gupta saab please take trouble to provide exact guidance. thanks. A bereaved father.

India | 392001 | Family Law, Divorce, Child Custody and Adoption

Help us improve LawGuru by taking our short survey.

Your response will be completely anonymous.

Take the Survey �

4/04/10, 10:49 pmAnswer (1 of 2) (a) The father may not be entitled to "take away" the child like this by disturbing status quo. However, he may seek visitation rights through court.

(b) The proposed action by father may amount to cruelty and domestic violence and he may suffer criminal prosecution resulting in a possible jail term.

(c) Mother's inability to earn is a strong ground in her favour for claiming maintenance for herself and the child.

You should try to avoid litigation, try reaching an amicable out of court settlement; and meanwhile, start sending adequate money for maintenance of your wife and child. Time is a great healer; do not rush up things; It is your family; You have a duty to try saving your family life in the interest of well-being of your child.

Sudershan Goel

Attorney-at-Law (India)/International Visiting Scholar

Sureme Court of India/University of North Carolina at Chapel Hill

Usa / New Delhi, NEW DELHI 110001

4/04/10, 11:07 pmAnswer (2 of 2) in your situation, once the wife is independently handing her responsibilities towards the child viz. her admission and schooling, there are bleak chances of you getting the custody. in case she wants divorce, without creating much hassles, co operate her in getting divorce by mutual consent. in case she does not want to stay with you, you cannot compel her to.

RAJIV GUPTA

Rajiv Gupta & Associates (Cell: 9811284735) [email protected]

(lawyer's Chamber No: 359, Western Wing, Tis Hazari Courts,

Delhi, India., NU 110054

the above are the responses to my question, and thank you very much Goelsaa'b & Rajiji for your prompt responses. However, what confuses me is that when I read your previous answers esp. from Goelsaa'b, I see that he has advised that the father cannot be stopped legally from taking the child away. Under what legal provision can the father be prevented? he being the legal guardian by law, does he not have any right or say in the matter? could what lead to arrest or jail term, as being a natural legal guardian, can the father be charged with abduction or are there any other provisions? the mother has been requested time and again to rejoin her matrimonial house but is strongly refusing. let me mention again, there has been no valid fault ground for her to contest the divorce. it's just that she left the house on impulse and is wrongfully supported by her family, one and all and all of them are making a mountain out of a mole-hill. is it not cruelty on her part to have deprived me of the child's company? is it not cruelty on her part to have deserted her husband without any plausible cause. the only reason she gives is some minor verbal skirmishes. she has no proof or evidence to show the cruelty, becasue ther hasn't been any cruelty at all! imagine the plight of the father when he is not even allowed to talk to his child even over phone!

secondly, my wife's b'day is there shortly. is there any harm in sending a loving letter to her with a card? can she use these against me, as I have sincerely apologised if she has felt hurt in any way? am i entitled to go to her parents' house to wish her? if she seeks the divorce through mutual consent, does the issue of the child custody not come in to play i.e. it also has to be decided out of court by the mutual agreement of either party. isn't it so?

please advise sirs and I request other eminet law-brains as well to throw more light on the issue.

1 Answer from Attorneys

Related Questions & Answers

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

Looking for something else?