Visitation rights after mutual divorce
Subhash
(Querist) 20 January 2018
This query is : Resolved
Hello .
I am Subhash residing in delhi.
I was facing cases of DV act, 498a and 125 CrPC. Then my wife's lawyer approached me for mutual settlement. I agree and she took all her cases back and we got divorce decree based on mutual consent 2 months back.
In settlement deed it was mentioned that she will have the permanent custody and I will not apply for custody and visitation rights in future, I was under pressure of all those cases so i agreed.
Now i want to file for visitation rights of my child. Is it possible ?
if yes on what ground ? ( Child is 8 year old ) Please guide.
Vijay Raj Mahajan
(Expert) 20 January 2018
Visitation/meeting ones own child is legal right even if you have agreed not to enforced it the time of divorce by mutual consent, you can still seek the same on the ground of change of circumstance and change of your mind now.
Why your lawyer didn't guide you properly at the time of mutual settlement that only shows his incompetence.
You can always file application under section 26 of the Hindu Marriage Act,1955 seeking the visitation right of your minor child in the Family Court even after the finalisation of divorce proceedings.
But do engage some competent, senior advocate for the matter this time.
Subhash
(Querist) 20 January 2018
Dear Adv Mahajan,
Thanks for your reply.
You are right my lawyer didn't guide me properly. He just said we will look that issue later now you should accept their terms and conditions.
In your reply you stated that "Change in circumstance can be the reason for filing application of visitation rights"
But how can i convince the judge that circumstances changed within 2 months of divorce ?
Should i file application only in Sec 26 of HMA or also GWA and Hindu Minority and Guardianship Act ?
Vijay Raj Mahajan
(Expert) 20 January 2018
Presently go for section 26 HMA for visitation that you seek now. If the divorced wife agrees for it than your matter resolved. If she's not cooperating and court also not allowing you the visitation, then seek sole guardianship of child and custody under the Guardians and Wards Act read with the Hindu Minorities and Guardianship Act.
See I told you the case has to be handled by experienced and senior lawyer.
Guest
(Expert) 20 January 2018
If you violate your agreement, she would also not be obliged to follow the same. What for visitation right is required? When severed relations and came to some agreed terms, abide by that.
Kumar Doab
(Expert) 20 January 2018
IT is good to see that you are agreeing that you were not properly informed.
Even if IT is in style that your lawyer did not guide you properly.
You may approach a very able senior LOCAL counsel of unshakable repute and integrity specializing in such/Family matters, having a successful track record, for a considered opinion.
Kumar Doab
(Expert) 20 January 2018
You may go thru;
Supreme Court of India
Vikram Vir Vohra vs Shalini Bhalla on 25 March, 2010
Author: Ganguly
Bench: G.S. Singhvi, Asok Kumar Ganguly
https://indiankanoon.org/doc/1064641/
from the perspective of agreement for MCD, decree of court, wishes of child of app. 7Y was asked by judge, welfare of child, brushing aside hyper-technical approach…………child is not personal property that can be divided into half…….. etc etc
Don’t be carried away by one judgment that is being cited just to become properly informed on time to time….. approach of courts of law…
This is just to get an idea how the judges and courts shall examine the matter....
Kumar Doab
(Expert) 20 January 2018
A lot may depend upon the surrounding circumstances, changed circumstances/ for the best interest of child, welfare of child, decisions of spouse under whose custody child is subject to re-opening, facts, welfare of the ward needing/demanding variation, ability of your own counsel to build your case, argue and convince the court……………..and don’t forget that your spouse may fight to the last court and may engage a very able counsel like you….
Therefore you indeed would need a sharp and senior counsel...
