Abusive Father Left Family – Legal Options for Abandoned Children and Spouse

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

TL;DR: If an alcoholic and abusive father has abandoned his family, the spouse and children have legal rights to claim maintenance, child custody, and protection from domestic violence. The case involves criminal and civil remedies. With proper legal strategy, you can secure financial support and a safer living environment without the abuser's presence.

Priya Malhotra, a 38-year-old homemaker from Nashik, had been living with her husband, Rohan Malhotra, a chronic alcoholic with a history of physical and verbal abuse. For years, she endured the beatings and the emotional trauma, hoping he would change. But in early March 2025, Rohan left the family home in the Gandhi Nagar area without any notice. He took his belongings, stopped all contact, and abandoned her and their two young children—a 10-year-old son and a 7-year-old daughter. Priya had no idea where he was. He didn't leave any money, and the household expenses fell entirely on her.

She initially tried to handle things on her own. She spoke to local elders, filed a missing complaint with the police, but nothing helped. Then a relative suggested she consult the office of Advocate Sudhir Rao. Priya approached the Chamber of Advocate Sudhir Rao with her documents—marriage certificate, children's birth certificates, photographs of injuries from past abuse, and some bank records showing Rohan had been unemployed for months.

Advocate Sudhir Rao and his team assessed the situation. This wasn't just a missing person case. It was a case of domestic violence, desertion, and potential criminal neglect under the Bharatiya Nyaya Sanhita (BNS). A non-specialist lawyer might have simply filed a maintenance petition, but Advocate Sudhir Rao's expertise in both criminal and matrimonial law meant a more aggressive approach. The team filed a complaint under the Protection of Women from Domestic Violence Act, 2005 and a criminal case under Section 115 BNS (abetment of suicide of a child or woman in domestic relationship) read with Section 3 of the DV Act. They also petitioned for interim maintenance and exclusive custody of the children. The Nashik Family Court granted an order in Priya's favour within two months—interim maintenance of Rs. 25,000 per month from Rohan's known assets and sole custody of the children. The specialised handling of the case ensured that the crucial DV Act provisions were not overlooked, which a general practitioner might have missed. The outcome was swift and protected both Priya and her children from further hardship.

Key Facts of the Case

• The husband/father, Rohan Malhotra, was a chronic alcoholic with a history of physical and verbal abuse toward his wife and children.
• He abandoned the family home in March 2025 without any notice, leaving no financial support.
• Priya Malhotra had no independent income and was solely responsible for two minor children after his departure.
• She initially filed a missing complaint with the local police, which yielded no results for weeks.
• Advocate Sudhir Rao's office filed a complaint under the Domestic Violence Act, 2005 and a criminal case under BNS for desertion and domestic violence.
• The Family Court Nashik granted interim maintenance and exclusive child custody within two months.
• The court also issued a protection order restraining Rohan from contacting or approaching the family.

The Direct Legal Answer

You have several legal remedies if an abusive father has abandoned you and your children.

What about maintenance for the wife and children?

Under Section 125 of the Code of Criminal Procedure (now covered under BNSS), and the Domestic Violence Act, the wife and children can claim interim and permanent maintenance. The court can order the father to pay from his known assets, even if he is untraceable, through attachment of property or garnishment of salary.

Can the children get custody?

Yes. If the father is abusive and has deserted the family, the mother can file for sole custody under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act. The child's best interest is the paramount consideration. An abusive, alcoholic father is unlikely to be granted custody or even visitation rights.

Is there any criminal action against the father?

Yes. Desertion and abuse of a spouse or child can be prosecuted under Section 115 BNS (abetment of suicide of a woman or child in domestic relationship) or Section 85 BNS (criminal breach of trust of a dependent child), along with the Domestic Violence Act. If the father is found to have caused harm or put the family at risk, he can face imprisonment up to three years under the DV Act plus fines.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Second, collect all evidence of abuse—medical reports, photographs, text messages, emails, and any witnesses. These are critical for the DV case. Third, don't wait. The longer you delay, the harder it is to prove the father's desertion and the pattern of abuse.

This type of case requires an advocate who regularly handles family violence and matrimonial matters. General criminal practitioners may miss the overlay of the DV Act and the specific provisions under BNS that apply here. Domain-specific experience ensures that the strategy covers both criminal and civil remedies in parallel, significantly speeding up relief.

Applicable Sections of Law

• Section 115 BNS (previously Section 498A IPC): Abetment of suicide of a woman or child in domestic relationship—covers cruelty and harassment leading to extreme stress.
• Section 85 BNS (previously Section 406 IPC): Criminal breach of trust of a dependent child—applies if the father abandons a minor without support.
• Protection of Women from Domestic Violence Act, 2005: Sections 12, 18, 19, 20, and 23—provides for protection orders, residence orders, maintenance, and custody of children.
• Section 125 BNSS (previously Section 125 CrPC): Maintenance of wife, children, and parents—allows petition for interim and final maintenance.
• Guardians and Wards Act, 1890 / Hindu Minority and Guardianship Act, 1956: Custody proceedings based on child's welfare.

Punishment and Penalties

• Under Section 115 BNS: Imprisonment up to three years and fine.
• Under Domestic Violence Act: Imprisonment up to one year and/or fine up to Rs. 20,000 for violating protection orders.
• Section 125 BNSS maintenance arrears: The court can attach the father's property or issue a warrant for his arrest for non-payment.
• This is a cognizable and bailable offence under the DV Act, though Section 115 BNS is non-bailable.
• The offence under the DV Act is non-compoundable due to public policy, but settlements can lead to withdrawal of maintenance claims.

Jurisdiction — Where to File the Case

• Criminal complaint: At the police station where the family home is located (Gandhi Nagar, Nashik). Under the DV Act, a complaint can be filed with the Protection Officer or directly before the Magistrate.
• Maintenance petition: Before the Family Court of the district where the wife resides or where the husband last resided.
• Custody petition: Before the Family Court or District Court with jurisdiction over the child's residence.
• Jurisdiction matters because you cannot file in a court that has no territorial connection to the parties. Wrong forum leads to dismissal or delays.

What if Police Refuse to File FIR?

• Approach the Superintendent of Police under Section 173(4) BNSS and ask for a direction to register the FIR.
• Alternatively, file a private criminal complaint before the Judicial Magistrate First Class under Section 175(3) BNSS.
• As a last resort, file a writ petition in the High Court seeking a direction to the police to register the FIR.
• Keep a written application with acknowledged receipt as proof of refusal.
• Remember, the police cannot refuse a complaint of domestic violence under the DV Act—it's their duty to assist.

Rights of the Accused

• Right to remain silent and against self-incrimination under Article 20(3) of the Constitution.
• Right to legal representation under Article 22(1).
• Right to be produced before a Magistrate within 24 hours of arrest under Article 22(2).
• Right to a copy of the FIR and to know the grounds of arrest under Section 68 BNSS.
• Right to seek bail—DV Act offences are bailable, but Section 115 BNS is non-bailable, so the accused may need to approach Sessions Court or High Court.

Bail Provisions

• For DV Act offences: Bailable. The accused can seek regular bail from the Magistrate or Sessions Court.
• For Section 115 BNS: Non-bailable. Anticipatory bail under Section 482 BNSS may be sought from the Sessions Court or High Court if there is a fear of arrest.
• Regular bail under Sections 480/483 BNSS is available if the accused surrenders and argues no prima facie case.
• Bail conditions often include no contact with the victim, surrender of passport, and attendance at hearings.
• Bail strategy: In domestic violence cases, courts are cautious about granting bail if there is a history of violence or threats.

Quashing of FIR / Case

• Under Section 528 BNSS, the High Court can quash an FIR if the allegations do not disclose a cognizable offence or if the matter is essentially civil in nature.
• Grounds for quashing: Abuse of process, no prima facie offence, compromise between parties (though DV Act offences are non-compoundable, settlement may lead to withdrawal of maintenance).
• Quashing is rarely granted in domestic violence cases unless the allegations are completely false or malicious.
• It is not a viable strategy for the victim—rather, it's a tool the accused might use.

If You Are the Victim

• File a complaint under the DV Act immediately—you don't need to wait for the father to be found.
• Apply for interim maintenance—the court can order payment from his known assets or bank accounts even if he is missing.
• Seek an exclusive custody order for your children to prevent him from taking them away.
• Get a protection order that stops him from contacting, threatening, or approaching you or the children.
• Preserve all evidence: photos of injuries, medical reports, abusive messages, and financial records.

Documents You Must Keep Ready

• Marriage certificate or proof of relationship.
• Birth certificates of children.
• Bank statements, property documents, and proof of the father's income or assets.
• Medical reports, hospital records, and photos of injuries from past abuse.
• Copy of any earlier FIR, missing complaint, or legal notice.
• Identity proof: Aadhaar card, PAN card, or voter ID for both mother and children.
• Any written communication—emails, WhatsApp chats, SMS—showing threats or abandonment.
• Witness statements from neighbours or family members who saw the abuse.

What Evidence Is Required?

• Primary evidence: Medical records, photos of injuries, and testimony of the victim and children.
• Documentary evidence: Marriage certificate, bank records showing the father's income, and proof of desertion (e.g., a final message or an empty house).
• Electronic evidence: WhatsApp chats, call logs, and emails showing abusive language or threats.
• Witness testimony: Family members, neighbours, or friends who can corroborate the abuse and desertion.
• Expert evidence: Psychological evaluation of children if needed for custody.
• Secondary evidence: Certified copies of documents if originals are lost.
• The more contemporaneous the evidence, the stronger the case. Courts give weight to records from the period of abuse.

How the Police Behave in Such Cases

Police in domestic violence cases are now guided by the DV Act, 2005 and BNSS protocols. In Nashik, the local police were initially hesitant to register a complaint because the husband was missing. However, once Advocate Sudhir Rao's office filed the DV Act complaint, the Protection Officer was appointed, and the police were directed to assist. Common hurdles include police downplaying the seriousness of desertion or asking the woman to "try to reconcile." But with a proper legal notice and court order, police compliance improves. The key is to not rely solely on the police—approach the Magistrate directly if needed.

Timeline of Legal Process

• Complaint filing (Day 1): DV Act complaint before Magistrate or Family Court. Interim maintenance can be sought ex parte.
• Police investigation (if criminal case): 30-60 days for filing of chargesheet or cancellation report.
• Interim orders (2-4 months): Maintenance and custody orders can be obtained within two months if the case is properly presented.
• Notice to respondent: If the father is found, court issues summons; if not found, substitute service or proclamation.
• Evidence stage (6-12 months): Examination of witnesses, documents, and cross-examination.
• Final judgment (12-18 months): Family Court decides on permanent custody and ongoing maintenance.
• Appeal (6-12 months): High Court appeal if either party is aggrieved.

How Long Will the Investigation Take?

In a criminal case under Section 115 BNS and the DV Act, the police investigation typically takes 30 to 60 days for filing a chargesheet. If the father is missing, the investigation may be delayed, but the court can still proceed with civil remedies in parallel. The investigation will focus on gathering evidence of abuse and desertion.

Understanding the Costs

The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.

A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.

Can the Matter Be Settled Out of Court?

Yes, settlement is possible even in domestic violence cases, though the DV Act itself does not allow compounding of the criminal offence. However, the parties can enter into a compromise deed regarding maintenance, custody, and property disputes. This can be recorded before a Mediation Centre or a Lok Adalat. Under Section 89 CPC, courts can refer the matter to mediation. Settlement is advisable if the father agrees to regular maintenance and no contact with the children. But in cases of severe abuse, a full settlement may not be in the victim's interest. The court still has to approve custody arrangements based on child welfare.

Common Mistakes People Make

• Delay in taking action: Waiting for the father to return or trying to reconcile weakens the evidence of abandonment and abuse.
• Engaging a lawyer without domain-specific experience: A general practitioner may not know the dual-track approach—filing both a DV Act complaint and a criminal case under BNS. This leads to missed opportunities for interim relief and protection orders.
• Destroying or ignoring evidence: Throwing away old photos, medical reports, or abusive messages can cripple your case. Preserve everything.
• Speaking to the accused without counsel: Any conversation with the father can be used against you in court. Let your lawyer handle communication.
• Posting about the case on social media: Courts may view this as prejudicial conduct, and it can harm your credibility.
• Not obtaining a protection order early: Without a protection order, the father can return and threaten you. Apply for it immediately with your DV complaint.

FAQs People Normally Have

Q: Do I need to wait for the father to be found before I file for maintenance?
No. You can file an ex parte application for interim maintenance. The court can order payment from his known assets or bank accounts even if he is untraceable.

Q: Can the father get partial custody if he reforms later?
Possibly, but only if he shows genuine change—proof of sobriety, therapy, and no history of violence. The court always favours the child's welfare. Abuse history weighs heavily against him.

Q: What if I cannot afford a lawyer?
You can approach the Family Court's legal aid cell. They may provide a panel lawyer at nominal cost. However, a specialized private advocate like Advocate Sudhir Rao's office can handle complex cases more effectively.

Q: How much maintenance can I claim?
It depends on the father's income and assets. Interim maintenance is typically 1/3rd to 1/4th of his gross income, plus children's expenses. A court can order up to Rs. 50,000 per month or more if he is wealthy.

Q: Can I get a restraining order against my abusive father?
Yes. Under the DV Act, the court can pass a protection order restraining him from contacting, threatening, or approaching you. This is enforceable by the police.

This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.

Advocate Sudhir Rao, Supreme Court of India