Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Rahul (Engineer)     08 July 2014

Mutual consent divorce & future claims

Its very sad to see that supreme court favored the abla naari in HAMA 18 act of maintenance even after a compromise in 125 CrPC suit.
 
Does the below set of points puts the husband on the safeside or what else can be written in the Mutual consent divorce so that after full & final settlement in Mutual Consent Divorce wife & child can not claim any thing from husband?
 
Pattern followed by parties , family court counselors , family courts in Mutual Consent Divorce u/s HMA 13 b(1) in which parties are signing the Mutual Consent divorce with below points :-
 
1. Petitioner No. 1 (husband) will pay x amount to the Petitioner No.2 and to the child as a full & Final settlement against  istridhan, dowry , maintenance (past, present, future) of petitioner No. 2(wife) and minor child and  permanent alimony of petitioner No. 2 (wife) and nothing remains due qua this marriage after the total payment of x amount. 
     
2.  Both Petitioner No. 1 (husband) & Petitioner No. 2 (wife) will withdraw their cases like                  Wife will withdraw 125CrPC & its related executions  & cooperates well in Second motion of Divorce & in FIR Quashing. Husband will withdraw Guardianship & Divorce Case on the date of First Motion.
 
3.  The Petitioner No. 2 (wife) and the minor child are withdrawing , leaving their all rights for maintenance under present or future laws whatsoever. 
 
4.   The petitioner No. 2 (wife) categorically undertakes to assume all legal liabilities on herself like accommodation,schooling, education, medication, marriage or any other expenses whatsoever for maintenance of self & child, in future.
 
5.  Petitioner No. 2 & child will not claim or demand any rights, titles or interest in the movable or imovable assets/ancestral property of petitioner No.1 and his parents, whatsoever.
 
6.  Both the parties have no remaining disputes with each other.
 
7. Child custody will be there with petitioner No. 2 (wife).              
 
8. Both Parties will not file any case/suits/complaints against each other or against their family members before any police stations, court of law , any other authority or any other departments qua this marriage.
 
The above said terms were drafted by one of the case known to me. Is there any more points to be written to safeguard husbands from the claims like happened in the attached supreme court citation ??????


Learning

 6 Replies

Tajobsindia (Senior Partner )     08 July 2014

1. A minor cannot become party to MCD as any acts done in good faith on behalf of minor by parents (guardian) can be challenged by minor.

2. Alimony (or as you say it as full and final) in MCD proceedings are always subject to re-opening in future no matter how craftily a MCD draft passes ld. Judge to come at Decree stage in a MCD proceedings.
Reason being; future course ld. Judge cannot predict as of today's date; suppose ex-wife remained un-married and falls critical sick and has no money then as per social Law she is required to look after by ex-husband by way of re-opened case and suppose minor when becomes major wants to do expensive studies and ex wife (mother) of child has spent all monies from MCD received then where she will go to fulfill your child wishes? Naturally to you as social Laws says so. There are so many suppose (ifs and buts) and it is not fullproof.

So point that I am making in short is get a MoU made with apt legal wordings and pray that your soon to be wife is re-married off the very next day of Decree in MCD and your child is feed well and grows to be major without rolling back to you and gets a job/marriage without approaching you. These are the circumstances which neither a ld. Judge (social Laws) in being can predict nor you can guarantee so re-read opening sentence under this para and close your palms and do the THING without falling into 'looptail'.

Adv. Chandrasekhar (Advocate)     09 July 2014

I can't agree more.  A small addition is that the provision of child's custody will be with the mother forever shall come in the upper portion of the agreement and as and when the child is referred in the latter part, as he is not competent to be a party to any contract/agreement being minor,  it has to be mentioned that "the mother being the sole legal guardian of the child agrees.....". 

Rahul (Engineer)     09 July 2014

Thanks Chdrashekhar & other people for their valuable replies.

I hope the point mentioned in the First Motion of Divorce along with affidavit duly signed by wife is treated as a undertaking by wife.

Especially the point mentioned below takes care of future liablities on wife for herself as well as for child. 

4.   The petitioner No. 2 (wife) categorically undertakes to assume all legal liabilities on herself like accommodation,schooling, education, medication, marriage or any other expenses whatsoever for maintenance of self & child, in future.

Also for child out of X amount as full & final settlement amount , 1/3rd amount is kept as an Fixed Deposit on the name of child till child attains majority & interest accumulated in the FD will be reinvested with wife as a nominee, makes the solid arrangement for the child after 18 years of age as well.

I hope the above said points seals any future claims by wife or child in future time.

In case any thing else needs to mention then please share.

Have a Heart Foundation (Sales & Mktng)     10 July 2014

Draft Consent Terms 

1. Access Schedule Agreed by parties:

a.  Regular Overnight Access agreed on Weekends: 1st,3rd, & 5th Saturdays from Saturday morning 11.00 am to next day Sunday evening 7.00pm. of each month.

b.  Overnight Access 50% access is agreed during All School Vacations : Diwali, Christmas & Summer Vacations.

c.   Overnight Access during Festival Weekend of : Ganapti & Navratri. : One Weekend Overnight access each of Ganpati & Navratri Festival from Friday Evening to Saturday Evening OR Saturday Morning to Sunday Evening.  

d.  During Festivals & Significant Occasions Day Time Access on : i) Raksha Bandhan, ii) Holi, iii) Ganpati, iv) Navratri, Diwali (laxmi Poojan Day), Date____Father’s Birthday, Date___ Child’s Birthday each for 6 hours during day.

2.  That the mother shall not remove the child from the school or from the local jurisdiction of ____Place___ / without court's permission.

3.  Passport of the Child will remain in custody of the court.

4.  Custody of the Child to be shifted to father if mother re-locates.

5.  Access agreed upon shall continue even if either or both of the parent remarry.

6.  Access defaulted / denied to be compensated within 8 days.

7.  All School and Medical Records to be provided to the father as soon as received by mother.

8.  Father can attend school and other functions whereby child participates and can meet child at school once a month.

9.  Any disputes shall be resolved in the Jurisdiction of _______ only.

 

 

10.  The one time permanent alimony towards the spouse or monthly maintenance is Rs.________ whereas a lump sum amount towards the one time permanent maintenance /monthly of the child is  Rs._________. The custodial parent will be solely responsible in maintaining the child’s needs hereafter. The spouse has waived her right to claim maintenance for past, present and future from the petitioner.

 

11.   It is recorded herein that the parents are co-guardians of the minor child named _________ , born on _______. The name, sirname of the child will not be changed. Neither parent shall remove child from the local Jurisdiction with an intent to re-locate or for any purpose without the other parent’s written consent, nor put the child for adoption. 

12.   Incase if the custodial parent shifts with child in violation to this arrangement, then expenses towards travelling, accommodation and legal expenses will be borne and provided by the custodial parent to the non-custodial parent. 

 

13.   The father has right to unimpeded telephone and web cam conversations with the child at least once a week at reasonable times and for reasonable durations; and the right to send mail / gifts to the child which the other parent shall not open or censor;

 

NOTICE REGARDING PARENTAL RELOCATION

 

If a parent who is spending intervals of time with a child desires to relocate outside the state or local jurisdiction from the other parent within the state, the relocating parent shall send a notice to the other parent by registered or certified mail. The notice shall be mailed not later than sixty (60) days prior to the move.

Shakya   16 September 2015

Hello Sirs,

             Are there any prominent judgements upon such an issue, where the wife cannot claim after full and final settlement through alimony amount duly paid already, has the supreme court laid down any such judgement upon this matter.

In my uncle's matter his ex wife is claiming an enhancement of maintainence after 20 years of divorce stating that she is entitled because she is unmarried under section 25 of Hindu Marriage Act. 

Thanking you Sirs.

 

Aanchal Arora (legal executive)     04 March 2017

In MCD, are the consent terms drafted separately or within the divorce petition?


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