Legal Question in Family Law in India
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.
2 Answers from Attorneys
(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.
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.
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