Torture by husband, divorce and custody of minor son

[Anonymous]

I got married in 1999, and is having a son who is 10 yrs of age. I am living with my parents and not living with my husband for the last 7 yrs.in between I tried to adjust so as to save my family but could not do so. After marriage we had lots of fightings, my husband has beaten me many times. I have tolerated him a lot so as to save my family life but when it appeared beyond my control I left my house to started staying with my parents. I do not have any proof or evidence of his torture being done to me except the horrifying memories. I never made any police complaint against him.

My husband is paying me some amount for the maintenance of my son, I have some financial support from my parents and I am a nurse and is able to maintain myself. Every month my husband meets his son once or twice at a third place. I want to take divorce from my husband. He is willing to divorce me but he wants to take custody of my son. I want to know as to what are the prospects of me getting custody of my son. I want custody of my son.

Pl tell me as to how to process the divorce case so that I get the custody of my child.

Can the father get the custody of the child just because he is meeting him once or twice a month and that he is giving some amount for the maintenance of the child and has been doing nothing more than this for him
What can be the merits of this case and to get the custody of my child. I don’t want to lose custody of my child.

Will the case be decided in my favour even when I do not have any proof or any evidence of my husband’s abnormal behaviour. Please guide me.

[Dr. Ashok Dhamija]

Since both of you, i.e., both wife and husband, are willing for divorce, the best way possible is to apply for mutual consent divorce under Section 13-B of the Hindu Marriage Act, 1955. This is the fastest way to get divorce.

As regards the custody of the minor son, the best possible way should be for both of you to mutually agree on the issue of his custody. In the absence of a mutual agreement, the custody issue will be decided by the court. While granting custody of a minor, the welfare of the minor is the foremost consideration which the court keeps in mind. The fact that the minor son is staying with you for several years (as per your question, you are staying separately from your husband for 7 years and apparently the son is staying with you for these years) is likely to go in your favour when the question of custody is decided. The mere fact that your husband is paying for the maintenance of your son will not be the conclusive fact to decide custody of the minor son in your husband’s favour. The overall welfare of the minor son will be the main consideration for this decision.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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