What are my rights if wife lives separately

840 votes

Hi,

There are few different options your son has in this situation based on which direction you need a remedy.
1.Your son can seek for restitution of conjugal right if he wants to reunite with his wife.
2.Your son can ask for the child custody. Though, that depends on few many factors.
3. Your son can also seek for divorce and child custody which again depends on few different factors.
Please contact me with more details and to discuss more specifically in which direction you want to proceed which will enable me to give you more specific advice.

LawRato LawRato

958 votes

YOU CAN file an application for the custody of the child . But all the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.''
The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.'

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.'

Advocate Sachetan Ghosh LawRato