Husband irresponsible. Drinks and smoke also. What all are my rights?
I was married in delhi in feburary 2014. I have a 5 month old baby. My husband drinks and smoke and abstains from responsibilities on the other hand my in laws tell me that let him not take responsibility we will take responsibilities on his behalf. But there is another point that they do not want me to work. Now i have come to my parents home. Recently my father in law called and asked me to file for divorce and denied it. I want to know my rights and about the custody of the child?
Assuming you are a Hindu you will be governed by the Hindu Marriage Act 1956.
If you are unhappy with the marriage, you have two option available with you. Either you can file a contested divorce under Section 13 (1) on grounds of cruelty. Along with the said petition you can file an application for maintenance under Section 125 of Crpc. Furthermore, you can file another petition with respect to the custody of your children.
Also , you can file a case under domestic violence act thereby seeking compensation.
Section 6 of The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl is the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. For appointment of declaration of any person as guardian, the court shall consider the welfare of minor. The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child’s total well being."
The above mentioned procedure is one option.
The other option available for you is to file a Mutual Consent divorce under Section 13 B of Hindu Marriage Act 1955. But this is only possible if your husband is willing to give you a divorce as well. So you will have to enter in a MOU /agreement with your husband wherein you will have to specify the terms of your divorce such as alimony/maintenance and custody of your children. This process is faster and cost effective.
Generally, in these cases women's have right to get maintenance if they are not working as per the financial and employment status of the husband. If you join somewhere to meet your expenses as you said that you are staying with your parents. in that case you may claim maintenance for the upbringing of your kid.
Other rights: you have right to stay in the matrimonial home,
These are the basic rights you may claim from your husband.
If you wish to know more than please specify your question.
Advocate Mohan SJanakpuri, Delhi
Since the child is small, the custody would remain with u subject to the condition that your husband proves before the court that u can't take the responsibility of the child. Further, u can file petition before the court claiming maintanence for you and your child. In case your are already earning than maintenance would be a problem but for the child, your husband is bound to pay you.
Advocate Jiwan Pal SinghTis Hazari Court, Delhi
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