divorce case
13 May 2012, 09:58
my sister wants a divorce frm husband after 4 years marrige life. she had a baby gal of 2 years. she wants that gal should remain with father but their in laws are forcing to take her along with. the case had already filled in ambala court & on mutual consent but due to baby the case is stucked. My sister is still in amabala with her in laws n husband. Kindly suggest what is the way to get out from this case positively. Can court bound her to live with them?
1 Reply
any child below the age of 5 is considered to be of a ‘tender’ age and as such the custody of him/her is generally given to the mother. however, in this case, as the mother is not willing to take her custody (and as neither is the father) the court will consider the child’s ‘best interests’ to award the custody to a willing guardian (if any exists). if any such guardian does not exist, then unfortunately, owing to the child’s tender age, your sister will, in all likelihood, have to take her custody. although, if your sister can show the absence of any source of income, which her husband does, he and not she, shall be awarded the custody of the child.
as far as the divorce is concerned, is your brother in law also interested in getting a divorce? if that is the case, then divorce will certainly be granted by ‘mutual consent’. if he is not interested, then your sister will have to contest the divorce and have to satisfy any of the grounds of divorce enumerated in section 13 of the HMA (assuming your sister is a Hindu, Buddhist, Jain or Sikh and her marriage took place in accordance with the Hindu Marriage Act). the grounds include: adultery; mental/physical cruelty; apostasy; etc. even irretrievable breakdown of marriage may be cited as a ground of divorce. all the best