Procedure for divorce and rights to visit child

I was married on 08/02/14.Interference of my mother-in-law started increasing.In the month of Dec 2016 my wife went to her cousin's marriage and didn't return for continuous period of 2 months.But I convinced her to return back in February 2017. My business is not flourishing well even after several attempts and finally in March 2017 we decided to relocate to a new destination to try our luck. When I informed this decision to my wife she denied and her family members supported her illogical demands. Finally on 22/04/17 my wife left our house.I tired to contact her over phone but she didn't talk to me properly. This is informed to district sub division legal service authority on 23/11/17. My wife had come for hearing but unfortunately I failed. A general diary is also done on 26/11/17 on police station. I have filed a petion for conjugal right on June 2018. They are not allowing to meet my son who is of 3 years. I don't want divorce and wanted to get visiting right.What should I do now

Answers (1)

317 votes

I can understand your situation but what can you do if your wife do not want to resume her married life. You can't force your wife to live with you unless you try to amicably settle the differences that had arisen. Even if you get the decree of RCR from court, court will be helpless spectator cannot force a wife to cohabit and resume her married life. What best you can do is go for counselling if that works, or engage elders from both families to work out the differences. It a difficult situation where husband are meet with this dilemma between his parent and wife. If your wife does not want to live with your aged mother, then its a good ground for divorce for cruelty.

Since she had left the matrimonial house out of her own free will, without any sufficient reasons, she is not entitled to get any maintenance, however your child is entitled to get maintenance. For custody of the child, she is entitled to keep the child till your son attains the age of 5 years, there after you being the father becomes the guardian of the child and entitled to get the physical custody of your son.

Presently if they are restraining you from meeting your son, then you need to file an application u/s 26 of HMA or u/s 38 of SMA (depending on solemnization of your marriage under HMA or SMA) for the custody of the son. Let court decide who would be the rightful custodian of the child. In most cases, if one of the parents is given custody of the child, the other parent is granted visitation rights. That means that you can meet the child with permission from her maybe during weekends. It is also possible to request the Court to reconsider its decision after a period of time, especially if the child is not happy.

Note: There are two types of child custody which may be granted. One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child, one for 183 days and the other parents for the remaining 182 days in a year.

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