LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

guestneedhelp (home)     19 August 2010

hostel issue

Dear friends

I need an answer to my question..iam in tension of loosing my child. :(

Iam a mutual consent divorcee.I have a 5+yrs old son living with me.In my mutual consent divorce 2008 there was a mutual agreement when the child will be 5 yrs old he will be sent to a boarding school.Accordingly my ex-husband filed a custody petition & a hostel petition.The custody hearing is pending  so as hostel petition till january...the judge has defferred it for 6 months...

When the mutual agreement was made  my ex husband convinced me forcefully saying "he wont snatch my child from me"...He has now got again married having a baby of 1yr old..

what is the future of my child plz advice..will he go to hostel or there is some a mother i have only my son who is my world..plz help


 22 Replies


First, did it not occur to you while signing (agreeing) for MCD (Mutual Consent Divorce) at whatever age the child then was then, that the child will grow up one day to be 5 years old to ask this que. now when he has turned 5 + years old !

Second, by his (ex Husband's) act he is not snatching the child, infact he is fulfilling joint agreed agreement of MCD is it not so ?. I can see aprehension in a mother which is natural but if you kindly look the other way round like, had he refused putting the child in a boarding school at 5 + age as per his agreed consent to MCD agreement then you would have now haunted him and might have approached Courts on Contempt of Court Order, compensation etc. etc. !

Third, let us all be reasonable to each other post MCD scenario in the "welfare and interest" of the child and anyhow during child vacation, equally both of you may take charge of the physical custody part of the child, if such agreement already there in the terms and conditions of the MCD Divorce, so in my opinion you are overreacting when the time to send the child to Hostel as agreed jointly by parents has come.

Concerning his second marriage and second issue from such wedlock it is on different footing and not related to briefs at all. Coming to Agreement (MCD) his current filing for Custody and Hostel is natural take and since your briefs does not disclose if Custody of child was also part of the MCD Agreement or not I will not comment on it, but since you say Hostel sending was part of MCD Agreement so his approach to Court to make it effective is a natural step.

It is suggested that you may write if you may like so, the silent paras of MCD (Terms and Condisions part) Agreement to this forum to guide you further may be I might have missed you briefs unknowingly during mentioning in above takes. I stand for correction to above advise.

1 Like



Nothing to worry, nothing at all.  first ask you ex whether he is still persistent to send the child to hostel or as it is in MOU, he is discharging his obligation.  If it is the latter case, then you both can reach to an agreement that you discharging him of his responsibility of admitting the child in hostel.

No, it is not just discharging his obligation but it is his wish even now (having another wife and children) to send your child to hostel, then you can draw your inferences and motives out of  his such thinking.  If that is the case, the court does not bother what you both had decided at the time of MCD and what is the agreement.   The court does not bother about this piece of paper on which it has to decide the life of a small child. The court is not going to enforce a clause of contract against a child, who at the age of 5 has got a natural right to be fondled by mother, embraced by her every day and stay and spend as much time as possible with her to grow healtheir, cheerful and useful citizen of India.  The court does not bother what are father's (who has another wife and children) rights on the child and what are mother's rights on the child.  The court approaches this problem completely from the angle of the child, what is beneficial to the child.  I have not an iota of doubt that the court prefers mother's lap than hostel for the child,  but before that the court will find out that how much time you can spare for the child in a day.  If you are a corporate chief and comes to home at late hours and leave the child to the care of maids, the court's outlook may change.

I hope, I have clarified everythinng. 

2 Like


Sh. Prabhakar

I totally disagree to your advise. Kindly understand a father to be a entity to bring a child on this tiny planet and kindly gone are the mythological epics days when seeing Sun God you give birth to a child.........

Your advise means total dis-respect to MCD Agreements and Decree out of a MCD and if such advise to be followed then why have a agreement for MCD and may I ask your kindself if you think sitting in D HC that Mr. Justice Dhingra is a incomepetent Justice to have passed several Contempt of Court Orders in similar MCD briefs as late as first quarter of 2010 ?

Your kind advise infact brings confusion in a mother and encourages litigant(s) not to follow terms and COnditions of a Joint Agreements post Decree.   


That is what precisely I am trying to say.  No right of father or mother is more important than the welfare of child.  The estranged parents, in a hurry to bury the hatchet, come to MCD agreement and in that any provision affects the welfare of the child, the court does not think twice to throw the MCD agreement in the waste paper basket. What is talking of the provisions of the contract?  Indian Courts have not respected even statutory provisions when the matter relates to the welfare of the child.  Have Indian courts obliging the statutory provision that after the age of 5 father is the natural guardian.  The courts have over riden the statutory provisions for the welfare of the child and most of the cases allowed the children above 5, 10 to stay with the mother.  The same fate will meet the MCD provision regarding pushing the child into the hostel.  I do not know whether Sh. Dhingra passed any such order in the similar facts and circumstances of the case.   If that is the case, then I also I do not worry and I advise Ms. Indrani not to worry, because that court is not the ultimate court and there are further appellate stages.

I always tell that oppressive clauses in the mutually agreed contracts are not enforceable.  She said in her querry - my ex husband convinced me forcefully saying "he wont snatch my child from me".    Whether the statement is true or not, we do not know, even then she has got a very strong case to keep her child with her and avoid sending the child to hostel, subject to that very important question - how much time she can spare for the child in a day.

In these days, I am really getting irritated because my advices, which come from bottom of my heart are always attributed to my commercial interest.  In this reply also, people with colour lenses see that I have some commercial and professional benefit as I am suggesting that a single bench's decision cannot be ultimate decision and there are further appellate channels to get justice. 

3 Like


after god now a particular high court judge is being targetted and insulted.


@ swatirswatir

wait wait don't instigate. understand what we both just discussed

@ Sh. Prabhakar

There is no need to mix other remarks received by you form other posts with this one. I simply disagreed based on existence of an Agreement and time has now come for the ex husband to fulfill that and nothing more I meant there. Though being a general public I added justification and probably I can afford to do that.

Now, concerning opressive clauses in an Agreement for that there is no need to comment that they are benefecial or not just because neither your kindself was probably her ld. Advocate nor I was there and not even a Court can direct such clauses in such voluntary agreements of a MCD couple.

Further don't you think when you say about 5 + years stuff that you being ld. Advocate should raise this adamently before your own Courts and I think you failed there so you should not suggest such failures to general public. Here I also mean to say that have you ever filed an RTI on just this statutory provision and have ever filed a PIL takign this grounds. Now these are not remarks but a professional sharing so if you take these as frustration then it is your understanding not mine. That is the difference between professionals like you and me on just this point. I have taken such points numbe rof times with Judiciary not only in my own case but people known around me also took the cue and are continously takign just one of these points with Judiciary and yes results will come but it will come slowly. Had lumineries like your goodself knowing well these loopholes taken in right time you could not have afforded to say such in a public forum. 

Well, I now understood what your advise means and say yes if we give advise based on what Law says then it is OK upto that point and here we means a advise coming from a ld. Advocate and if we go beyond that and add 'sentiments" / "emotions" then it is not administrative duty and that is where your message got interpreted by me in totally different note. But since you covered it up preaty well in subsequent message on what made you remark in such way I appreciate and close this matter atleast from my end.

PS.: It is not important in a public forum to know exactly what you are and what I am but what matters in a legal forum for readers especillay when ld. advocates replies is that we general public expects correct interpretation of point of Law (minus ifs and buts) and how Law will take its course in provided briefs and adding 'masala" by a ld. advocate gives missinterpretation to readers and I was one of them who interpreted your advise in that negative way bce it showed in that way. Whereas if a general public gives opinion on legal matters then it is a must to touch the core subject and based on experience gained in handling such legal situations in day to day life it becomes necessary that a public person composes the messages in as close brushes as much as possible without getting reprimend from subject experts yet the message is conveyed with minimul scrutiny. This much I think I understood so far by being in this forum for such short time.

And at the end n never the least it was nice to get your take / views and has brought good clarity into this post thread and wish you all the best. Yes I do mean by it. 

Arup (UNEMPLOYED)     20 August 2010

mutual agreement -  when the child will be 5 yrs old he will be sent to a boarding school

Accordingly my ex-husband filed a custody petition & a hostel petition.

what is the wrong?

are you marry 2nd time or is there any possibility of that?

if not, if you are devoted to your child, then discuss the matter again with the father of the child, and if necessary, take help of his present wife in the discussions. Mutual understanding is best.

In case of child's custody - child's welfare is in the main considaration and nothingh else.

judgement is also there.

now one point should be cleared here. - are you receiving maintenance for the child?

if so that amount will go to hostel administration.


1 Like

Arup (UNEMPLOYED)     20 August 2010

when it is mutual agreement for divorce, how one can force you?

do you not have an advocate there?

Arup (UNEMPLOYED)     20 August 2010

mr prabhakar,

are you sure the cry for the child by it's mother is genuine? or for fear of snatching maintenance is the cause.

come to a practical point, after sening to hostel, the father have to pay some high amount, rather than the present.

why he will take more financial responsibility?

i am in line with this point of mr auun that the father fulfiling his legal responsibility, which is a outcome of a mutual agreement.

i am in line with this point  of you that - child's welfare is  in top priority and above all.

however Indrani ji should clarify the point.

guestneedhelp (home)     20 August 2010

dear sir,

in my MCD points are:-

1.the minor child will stay with the mother at her residence petitioner mother and sister can visit as n when desired(now on april judge instead of sending the child had ordered to send the child once full day at their residence and iam obeying it)

2.3500/= as child expenses will be paid per month further money can be claimed in future

4.when the child will be 5yrs old he would be sent to a good boarding school

5.for wellfare of the child both parties are agreeing to the MCD

guestneedhelp (home)     20 August 2010

Dear sir,

 My cry is not artificial.

Iam single.Dnt have intension to get married again.We have family business.Iam a shareholder...financially independent.I stay at home.devote full time to my son...playing with him school drop pick up then teaching him..helping him in all mothers care for their child...not working outside.

Neither i claimed maintainence for myself nor my child.what he is sending 3500/= is a meagre amount  .

what his intension is jst to harrass me...nothing more than that.I tried to talk to him regarding hostel issue after he filed the petition but he turned deaf.

I understand what blunder i have done.i trusted him during MCD .His advocate prepared everything..he appointed my advocate.Now how can i come out of the hostel trap.plz help

Arup (UNEMPLOYED)     20 August 2010

at hostel your name will be added as mother's name.

you have the power to see the welfare of the child.

then where is the problem?

how he snatched your child from you?

ofcourse you will not be able to see him daily. but for the interest of his future you have to bear it.

rs 3500/- is not a big amount for hostel. in future it will be more.

ok , talk to father also. might be he agreed to keep his chid with you. then no legal complicacy will arose.


Okies, I have read provided T & C of the MCD and makign a reply as I see you online since afternoon waiting for answers to your overnight worries.

Now here are some Q n A from a aam adami 

1. Is the MCD already decreed, means both of you are divorcee now ? I asked because you answer in present continuation tense and not past tense. May be I didnot understand your above two messages properly. Whatever, kindly answer if both of you are divorcees now?

2. Now, coming to the crunx of the matter. I say a child is a loving apple to both parents. Mother shows more outwardly emotions than a father but inside they both love their child which is natural. If we mix this antithesis to your present worries then I don't see why there is a resistence from your part? Don't you want the child to study in a boarding school ? If no then all you have to do is file a "change of circumstances" application (IA) in his custody application and get restraining order till custody matter is decided. Your immediate problem (worries) may get solved. But, then this Rs. 3.5 K issue will be kept pending, to solve this issue you may agree to take the money from father for present school (nursery) expenses by mentioning in the same IA.

3. I don't believe in what Mr. Prabhakar said that options of High Court to Supreme Court available and other things becuase simple reason being that the less a parent exposes the child to Courts the better reasonability comes and child welfare is better looked after by custodial parent.

4. If he has filed for custody of the child then that issue was left out from T & C of the MCD if you see what you have mentione din above two messages Paras. Which also means it was not he who tricked but it was your Advocate who tricked you into quick settlement because if your ex husband is a trickester then atleast I believe your hired advocate was not a fool not to see through all these. I also noticed yoru sentence and I quote " His advocate prepared everything..he appointed my advocate" this sentence means nothing to me in a internet forum unless I see the certified copy hence previous para sentence reply I will stand.

For leaving 'compensation" as gratis is nothign big you have done in civil proceedings claims of maint. becuase even after MCD you can still move Criminal Maint. Suit and claim maint which can never be stopped till you re-married and or he dies and or some new amendment in Criminal Maint. Laws is passed by Parliament so to me this is not a sacrifice but "agreement of arrangments" sort of deal you willingly opted for.

Concerning "allowing" meeting of child (means visitation) based on T & C and some days full day visits are also not big deal from your side other than a reader will appreciate that you as a mother is makign "efforts" for conducive meetings of child with his father and why not one should not allow such visitation afterall he is his father and this child was not born out of Sun God I suppose !

7. I am fully aware that you will move Courts and bring the child to various Court just because you donot want the child to be removed from your eyes be it a Boarding School a name given to such pleas here and or overnight visitations if he demands for such rights in days to come or something else like I sacrificed compensation. So it is unfortunate case and wish both of you 'wisdom" to see the situation from "child point of view" leaving aside if ex husband is married and having a child now and or you coming from well to do family and did refuse compensation at one given point of time and or child should not be sent to boarding school etc. etc.

Here ia question I ask publically whose answer you give to yourself: Que is what made you opt for MCD when you say you from well to do family and for child you opted for MCD and you say you refused alimony / compensation etc. but wanted to keep the child with you and then you say you agreed in MCD that the child will be put in a boarding school but now these worries?????????

In my understatement there is something else behind which only you two know and can solve better than so many legal advises being asked when MCD already done......

At the end I once again sincerely wish you both best wishes and pray that the child welfare is not sacrificed at the end which only a 'wise parent" can justify and currently in present situation "wise parent" is the Court so matter is struck not only for your ex husband but for you too for next six months (you say the next date of hearing given is after 6 months) so you see where all these will lead to at the end when the child has just taken the first step to nursery (pre prep school) age !!!!.  

1 Like

guestneedhelp (home)     20 August 2010

1.we got MCD in the year 2008 jan.iam single.he got married again.

2. i  had a dummy advocated appointed by his advocate

3.if i claim for maintenece now am i eligible ?will it effect custody? he earns more than 1.5lakh per month

4.iam sending my child in my ex husbands home every week in my hometown.but my ex husband lives in another only  4 times a year he meets his son...since he works there

5.i agreed at that point of time as situation was different.he verbally told me child will stay with me...he would like to have live in relationship with me.when i denied within 6 months he filed for custody...then now hostel..

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  

Popular Discussion

view more »

Post a Suggestion for LCI Team
Post a Legal Query