Mutual divorce - custody of child
Guest
(Querist) 13 June 2014
This query is : Resolved
Hi, My divorce was granted on 27th Jan 2014.
We filed petition stating the custody of the child should be with me(mother). But in the court order they have not mentioned anything about the child custody. My son is 4yrs now.
ajay sethi
(Expert) 13 June 2014
consent terms must be forming part of divorce decree
Guest
(Querist) 13 June 2014
Thanks for Reply sir. But that terms are not included in the decree. How can i get it included?
ajay sethi
(Expert) 13 June 2014
when you filed divorce petition you must have filed consent terms . it forms basis of divorce decree . the decree must have mentioned about the consent terms filed by parties . no need to worry
Guest
(Querist) 13 June 2014
the decree has only 4 points which says about my marriage date, petition date, hearing date and the judgement. Nothing else is provided. Also the decree is in local language tamil.
Nadeem Qureshi
(Expert) 13 June 2014
Dear Querist
You can file child custody petition before district court under section 7/9/25 of Guardian and Wards act otherwise your husband has same right as you have regarding child custody.
Feel free to call
Guest
(Querist) 13 June 2014
But while filing the petition for mutual divorce we both agreed and included in the petition that child that custody and guardianship of the minor son should be with Me. Was that not enough?
Rajendra K Goyal
(Expert) 13 June 2014
The decision must be on the basis of agree terms in the MCD petition, in case of doubt consult a local lawyer and show him the documents.
V R SHROFF
(Expert) 13 June 2014
DECREE INCLUDES PETITION, AND CONSENT TERMS. IT'S ARE BINDING ON BOTH OF YOU.
Devajyoti Barman
(Expert) 13 June 2014
If in the mutual divorce divorce petition the custody of the child to remain with is clearly mentioned then it is fine and you have nothing to worry.
if the wife refuses to comply with its terms you can file another case for its compliance.
Dr J C Vashista
(Expert) 14 June 2014
Recheck the decree, it must include custody of the child, the Court cannot function such blindly, as you have stated.
If it has been left over, erronously, move to the same court with an application u/s 151 CPC for modification.
Raj Kumar Makkad
(Expert) 14 June 2014
The querist is clear in her words. Why we experts are basing our reply on assumptions and presumptions?
If the issue of child custody has not been dealt in the divorce petition then subsequent remedy is to be told to the querist and as per me, the querist needs to file a separate petition under Hindu Minority & Guardianship act seeking custody of her child or should go to high court in the same divorce petition seeking inclusion of child custody issue.
T. Kalaiselvan, Advocate 
(Expert) 15 June 2014
Since the child is in your custody, do not worry about the legal issues on it, more so, the issue has been discussed between you and your husband and mutually agreed and reduced to writing in the petition for divorce that the child will remain in your custody, it is implied that the child will remain with you. If at all your husband desires to have the custody of your child with him, let him file a petition under the guardians and wards act before the court, you can challenge he same by producing the certified copy of the divorce petition whereupon it was mutually agreed between you both that the child shall remain in your custody. Now be free about it.
Guest
(Querist) 16 June 2014
Thank you So much Mr.Kalaiselvan.
I need to get passport for my son. How to proceed further.
Raj Kumar Makkad
(Expert) 16 June 2014
You need to get NOC from your husband and have to apply passport for your child as desired. If possible personally visit the passport office and enquire about their requirement in the matter.
Guest
(Querist) 16 June 2014
I dont wish to get back to my husband to get NOC. I know he will not provide the NOC. He didnt even provide community certificate for the kid. What happens if i filed a case for the Guardianship and the legal custodian
Raj Kumar Makkad
(Expert) 16 June 2014
You can definitely file the petition as desired and in that case you have no need to obtain NOC from your husband.
Guest
(Querist) 16 June 2014
How will be the proceedings of that Guardianship case.
Guest
(Expert) 16 June 2014
First you apply for the pass port with normal procedure stating you are a divorcee and the child is with you.Do not complicate the application by stating which is not required.If at all any query arises regarding child custody then you could proceed as advised by other experts by meeting the Passport officer in person.By god,s grace no hurdles then you need not worry.
Raj Kumar Makkad
(Expert) 16 June 2014
Even if decree of divorce is existing between both of you but the same has no effect on the rights of the child or the rights of the parents over the child except his custody. Contacting nearest office of passport is very easy but the petition seeking custody of the child through family Court is a time consuming issue.
