Legal Question in Family Law in India
Below is my last question and a response to it. Now my query is: What plausible reason can I give for staying seperate? I cannot prove either cruelty or ill treatment as I have no evidences. We are Hindus.
is the onus of proving the husband's income's volume or the source of income on the claimant in the case of demanding maintenance? What if he tries to hide his income by saying that he is unemployed or something like that? I am seperate from my husband for 2 months with a 4 yrs old girl child and staying with my parents. I am a post graduate but not earning. Am I entitled to the maintenance just like that or do I have to seek the court's intervention? is a case for divorce or judicial seperation decree etc required to be eligible to get maintenance? What if I can't provide a valid reason for staying deperate? I just don't want to stay with my husband. Is that sufficent? he wants me to join him. He has sent me letters. I have come away while my child's school was going on. Can I be accused of having deprived the child of her education? My husband is an academician and an experienced educationist. Can his professional background as a person form the field of education have a role to play in the custody of the child? please advise as early as possible.
India | 364002 | Family Law, Divorce, Child Custody and Adoption
Answer (1 of 1) (a) The custody issue will be decided considering "best interests" of the child. Normally, mother is allowed custody for a child below five; the custody of a girl child is mostly given to the mother, unless she is otherwise proved "disqualified" to be a mother because of some fault in her character / life pattern.
(b) You do not have the 'ONUS' to prove his income; the only thing you may need to prove is his tentative income by disclosing his employment and his "standard of living".
(c) No case of judicial separation or divorce is required for maintenance. You are entitled to seek maintenance for yourself and your child.
(d) Your unwillingness to live with your husband may not debar you to claim maintenance if you could have some plausible explanation.
You may peruse the relevant provisions of DVA for further guidance.
Sudershan Goel
Attorney-at-Law (India)
Visiting Scholar, School of Law, University of North Carolina at Chapel Hill
Chapel Hill, Nc, Usa, NU 27707
2 Answers from Attorneys
under hindu law, there are fault grounds of divorce viz. desertion, cruelty, adultry etc...and in case there is no ground in your favour, a decree of divorce is not possible.
If your stay in your husband's house was made difficult for any reason, you do not need any witness to prove that. Your own personal statement is good enough for justifying your separation.
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