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Lakshmi (Homemaker)     04 March 2014

Mutual consent and child custody

Hi,

I have filed for Mutual Consent divorce and am mother of 4 year old daughter. I have not claimed any maintenance or alimony for me. They are not giving anything for the child as well. I have given up everything since they have agreed for full child custody without any visitation.

My question is, after getting divorce and court order, can the child's father go to high court and ask for child custody or visitation despite the agreements in MCD petition that he will not file for child custody or visitation. 

Awaiting reply

Varalakshmi



 7 Replies

Tajobsindia (Senior Partner )     04 March 2014

1.   Yes he can under ‘any’ “change of circumstances” relating to 'best interests' of a minor. Even best of Hon’b’le SC as well as several Hon'ble HC's held 'Lok Adalat' MCD (minor related) were re-opened up by father / grand-parents so your question before me is a boggy in the name of ‘welfare of a minor’ as short seen by (a) natural guardian(s).

2.    Even if such waiver is mentioned they shall remain subject to re-opening in Appellate Court.

3.   Queriest minor’s long term 'best interest/welfare' option as per mine opinion;

If they (includes natural father) is not interested in custody nor even in visitation as of now as you state here, then do keep open end offer for them (including natural father) for 'visitation' once a month for few hours in one of the MCD Agreement para. BTW surrendering minor's maintenance in MCD now (as you state here) can also be re-opened up in future, as any decision taken by guardian on behalf of minor are subject to re-opening is generic view taken by many a Hon'ble Court's.

Reasoning;
Least to least if opined para is there in a MCD Agreement then they (including natural father) still ‘may’ not utilise ‘that’ offer post MCD that is what will keep rest your long term worries once for all is my view. 

hema (law officer)     04 March 2014

No.  He can't.  Take care to put appropriate words in the Mutual Consent Divorce petition that the divorce is consented on the express terms that he will not seek the custody and visitation of the child neither at present nor in future.  To make it doubly sure, It can also be mentioned in the MCD petition that husband will be barred to file any future case for custody/visitation on the ground of "changed circumstances".

T. Kalaiselvan, Advocate (Advocate)     05 March 2014

I respectfully disagree with Hema while I fully agree with Tajobsindia.  No law can disconnect the relationship between a father and his child.  If the child opts to be with the father, law cannot prevent it because it will be against the interest of minor welfare. Besides the Tajobsindia's observation which is as any decision taken by guardian on behalf of minor are subject to re-opening is generic view taken by many a Hon'ble Court's is absolutely right.

 

As per Indian law, father is the natural guardian of a minor child and the mother will supplement only when the father is no more.

 

the answer to Varalakshmi's question "My question is, after getting divorce and court order, can the child's father go to high court and ask for child custody or visitation despite the agreements in MCD petition that he will not file for child custody or visitation" is that the father can very well do it, he has got full rights to do so.

Raj (fr)     20 October 2015

The niceties of law cannot come in the way of this Court while deciding an issue of such a delicate nature. More so, the writ petition could not be maintainable for the relief sought herein.


 
Thus, it is evident from the above that a mere technicality cannot prevent the Court from doing justice in exercise of its inherent powers. The power under Article 142 of the Constitution can be exercised by this Court to do complete justice between the parties, wherever it is just and equitable to do so and must be exercised to prevent any obstruction to the stream of justice.

 

In Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090, this Court (Three-Judge Bench) considered the nature of custody of a minor under the provisions of Guardians and Wards Act, 1890 and application of doctrine of res-judicata/estoppel in respect of the same and held as under:
                                                                      11
         "The appellant's argument based on estoppel and on the
orders made by the court under the Indian Divorce Act
with respect to the custody of the children did not appeal
to us. All orders relating to the custody of the minor
wards from their very nature must be considered to be
temporary orders made in the existing circumstances.
         With the changed conditions and circumstances,
including the passage of time, the Court is entitled to
vary such orders if such variation is considered to be in
the interest of the welfare of the wards. It is unnecessary
to refer to some of the decided cases relating to estoppel
based on consent decrees, cited at the bar. 
Orders   relating to custody of wards even when based on consent         are liable to be varied by the Court, if the welfare of thewards demands variation."

 

The aforesaid judgment was re-considered by this Court (Two-Judge Bench) in Dhanwanti Joshi v. MadhavUnde, (1998) 1 SCC 112, and after quoting the ratio of the said judgment, held as under:

 

 
         "21......However, we may state that in respect of orders
as to custody already passed in favour of the appellant
the doctrine of res judicata applies and the Family Court
in the present proceedings cannot re-examine the facts
which were formerly adjudicated between the parties on
the issue of custody or are deemed to have been
adjudicated. There must be proof of substantial change
in the circumstances presenting a new case before the
court. It must be established that the previous
arrangement was not conducive to the child's welfare or
that it has produced unsatisfactory results....."

 
In Jai Prakash Khadria v. Shyam Sunder Agarwalla&Anr., AIR 2000 SC 2172; and MausamiMoitraGanguli v. JayantGanguli, AIR 2008 SC 2262, this court held that it is always permissible for the wards to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances.

 

(See also VikramVir Vohra v. ShaliniBhalla, (2010) 4 SCC 409)

 
20.        In addition to the statutory provisions of the Contempt of

 
Court Act, 1971 the powers under Articles 129 and 142 of the
Constitution are always available to this court to see that the order orundertaking which is violated by the contemnor is effectuated and thecourt has all powers to enforce the consent order passed by it and also             14issue further directions/orders to do complete justice between theparties. Mutual settlement reached between the parties cannot comein the way of the well established principles in respect of the custody

 
of the child and, therefore, a subsequent application for custody of aminor cannot be thrown out at the threshold being not maintainable. Itis a recurring cause    because the right of visitation given to theapplicant under the agreement is being consistently and continuouslyflouted. Thus, doctrine of res-judicata is not applicable in matters ofchild custody.

 

 
If the instant case is considered in totality taking into consideration the above referred judgments, we are of the view that inthe facts and circumstances of the case, inference can be drawn thatthe rights of visitation given to the applicant by this court vide orderdated 3.5.2008 stood completely frustrated and the respondents haveensured that the applicant may not reach his son and all attempts madeby the applicant in this regard stood futile.

 

Rakesh Agr (fighter)     22 October 2015

Dear Lakshmi - you cannot stop a natural guardian from meeting with his child. You can play the lady card and keep the child for one more year (5 years) but he can come back later and if he is able to prove that he is more capable for the child that court will ask you to hand over the child. The only consideration is "paramount importance" of child. So you may be fighting a lost battle

Raj (fr)     02 July 2017

The arrangement is not conducive to the child's welfare and that it has produced unsatisfactory results so continuing with the same is not in the interest of the children so need to be modified. Children have been treated as chatter. Which is not acceptable in a civilized society for the future citizen and Judiciary intervention is very much required to grant humanitarian justice which is long pending. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court's discretion in custody order.There is nothing against the Petitioner which debars him from having the custody of the children.The Compromise Petition has not any agreement that the custody cannot be filed under the changed circumstance.Every child has a right to develop his or her potential. In fact a right to development is a basic human right which has been totally been ignored. Also the rights of the father have been totally ignored along with.It is always permissible to apply for the modification of the order of the court regarding the custody of the child at any stage if there is any change in the circumstances.It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the moral and ethical welfare of the child must also weigh with the court as well as his physical well- being; The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the Ld.court with care and caution with love, affection and sentiments applying human touch. Statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor.That Mutual settlement reached between the parties cannot come in the way of the well established principles in respect of the custody of the child and, therefore, a subsequent application for custody of minor cannot be thrown out at the threshold being not maintainable. It is a recurring cause because the right of visitation given to the applicant under the agreement is being consistently and continuously flouted, which necessitate the filing of this application.That the statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The welfare of the child is of paramount importance in matters relating to child custody and it is settled principle of law that welfare of the child may have a primacy even over statutory provisions. The denial access to biological father amounts to abuse of the children and also cruel. the children are entitled to the protection, support and care of the biological father as the natural guardian.

As we know fathers play a vital role in the development of a child.*Fatherless society is dangerous:* In the United States of America, reported statistics tells that Children from fatherless homes are: a). 5 times more likely to commit suicide b). 32 times more likely to run away from home. c). 20 times more likely to have behavioural disorders d). 9 times more likely to drop out of high school. e). 10 times more likely to abuse chemical substances (become drug addicts) f). 20 times more likely to end up in prison.

Nitish Banka (lawyer)     01 April 2018

Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by Desertion, cruelty, Adultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

[caption id="" align="alignnone" widdth="749"]Image result for mutual consent divorce Mutual consent Divorce[/caption]

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

 


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