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Babita (Manager)     17 October 2014

Requirement of noc

To
Respected Advocates.
My question is divided in some parts but all have nexus with each other.
1) I am taking divorce from my husband, because I am tired of mentally tortured by him, i have 2 options either to go mutual or in court.
2) But I know my husband will not, sign the mutual agreement, he may sign 2 times but not at the final time. So Ist question, is he required to sign the agreement all the time in the court, what is he not signn third time means final time, or rejects to will I still able to get divorce.
3) He wants to torture me after marriage tooo, so he is making a clause in mutual agreement that I will not re mariiage again, I know this is void, he can't stop in doing so, so he is planning to not to give NOC for my child(who is minor), is his NOC must required for my remarriage.
4) How can i prove in court that he is not good father, when all the fees of child are paid by me, even all medical bills are paid by me, he even not take my child to doctor for treatment.
5) My child hates him, because he used to shout on him earlier, will then court can cancel NOC requirement.
6) If i prove he torture me mentally, which is crime, is still NOC require.
7) Last, what if I remarriage without NOC is this crime, if my child use my surname not my husband surname, will it be crime.

Sir, please help me, i am very disturb, why law is doing injustice to me, a women who tortured by her husband, by this provision.



 10 Replies

Adv. Chandrasekhar (Advocate)     17 October 2014

By your line of questioning, I understand that you have not clarity on certain legal points but hazy picture.  So, instead of point-wise answer, I clarify the situation.  If you are quite sure that he will sign the mutual  consent divorce petition and also appear in the court in the first motion and record his statement but absents himself after six months, when second motion comes for hearing, then you SHOULD NOT go for mutual consent divorce.  Because, he has got a right between the first motion and second motion,  in the intervening period of six months, at any point of time appear himself with application and can withdraw his consent, which he had given in the first motion and if that will be so, then the court without asking your comments summarily dismiss the mutual consent petition and you will not get divorce decree.  If he does not withdraw as I explained above, even then if he does not appear in the court at the second motion and again record his statement for mutual consent, the petition will fall flat and you will not get divorce.  So, if you are sure for his trechery at a later stage then do not go for mutual consent divorce.  You go for contested divorce on the ground of 'mental cruelty'.  Even  though this case takes about three years, at least, if you can prove your grounds, you can get divorce.  You are giving so much emphasis for no objection certificate.  In law, divorced husband's permission is not required for divorcee wife to remarry.  What you require is a proper divorce decree issued by the competent court.  Again for child custody, if there is mutual consent divorce, then in the petition it can be clearly mentioned that the child will be in the custody of the mother and father voluntarily gives up his right to have custody of the child and he will not litigate in any court about child custody after the divorce.  If husband agrees this provision will be binding on him.  But you cannot stop him  to file a case later on for the child's visitation or custody on the ground that mother is neglecting the child.  So, if there is no mutual consent petition is offing, then you can file contested divorce case.  For the child's permanent custody, you can file a separate case, where the court will decide keeping in view of the welfare of the child.

Babita (Manager)     17 October 2014

Thank you very much, Chandershekar ji.

It clears my many doubts, but some one told me, after divorce, if i remarry, my future husband will not be able to adopt my child without the permission or NOC of divorced husband. Becuase biological father consent is must in adopting his child. is this true.

Please help me.

Adv. Chandrasekhar (Advocate)     17 October 2014

Yes. That is absolutely correct.  For adoption purposes, biological father's consent is required and as well as to get passport of the child also father's consent is required.  In the case of latter, passport authorities accept the court's permanent custody order to waive the biological father's consent.  But for adoption it is must.

Babita (Manager)     17 October 2014

it means still he can torture me by not giving the NOC. Is law  favouring males by making this provision and making women dependent on the male for his consent.

Sir your knowledge is helping me in clearing my all doubts.

But just tell me one thing more, If i remarry, and my child use my surname not my future husband, will it be legally right, in this his consent required or not.

and if remarry to other state, is he come to meet my child or i have to come to his place to make him meet the child


(Guest)

If he wants to trouble you, he can do a lot with regards to child visitation.  Sadly, if that is the case, you have no other option than to dance to his tunes.

Adv k . mahesh (advocate)     17 October 2014

1. you cannot change surname 

2. here one more thing you have forgotten that after mutual consent divorce you cannot remarry means if you remarry your husband will have full rights through out his life time to claim the custody of the child 

3. here one more thing your husband will not give consent for adoption of child for you after marriage after divorce 

4. better to go contested divorce as even he is also want to separate but through harassment to you so go with amicable settlement by talking to him or through your lawyer 

for every purpose your present husband consent is required for the child till the adoption is done with your present husband consent only 

Babita (Manager)     17 October 2014

if i prove him guilty in court for mental torturing, which is crime, as i have sufficient proofs for that. Will there still NOC required. And if i re marry but my future husband not adopts my child, but he lives with me and use my surname, which means, child is not adopted by my future husband, so is their still need of consent of my past husband

Adv. Chandrasekhar (Advocate)     17 October 2014

Madam babitaji, you have been confused one issue with the other.  The issue of divorce is different.  If he agrees, you can go for mutual consent.  If you doubt he will go back after first motion, then it is better for your to go for contested divorce.  O.K.  Now, divorce issue is over.  Come to the child custody.  If you want permanent custody of the child, you have to file a separate case seeking permanent custody of the child.  The court will look into all other matters, including his negligence towards the child earlier, his attitude towards the child, and also his mental cruelty etc.  But the most important things is what is good for the child, that will be taken into consideration.  A small interview with the child also will be done by the judge to find out the child's wish.  Above all, the court can give permanent custody of the child to you.  But it cannot stop the visitation rights to the biological father.  But in most of the cases, the father who wants the child will be asked to visit the place where the child resides to spend some time.  If the child grows up to 10 years or so, the father may get summer and winter vacation to spend with the child and can get permission to take the child to his place.  That depends upon various factors and we cannot give you precisely how the court orders for visitation flow.  But you rest assured, that court will take all your concerns with utmost seriousness before giving visitation relief to the father.   After you get remarried, then also the child can live with you and step father.  Once permanent custody order you obtain, then there will be no problem.  But if you remarry and the child's biological father does not  remarry, he has got better chances to get custody of the child than you.  Next, changing the topic,the biological father's NOC is not required if the child stays with you and his step father, if you obtained custody orders from the court.  Valid  adoption deed can be done only with the consent of biological father.   If he refuses, the child cannot be given in valid adoption.  There are so many technicalities involved in this adoption procedure.  But what you must understand is that valid adoption is not required and biological father's NOC is not required, if you have got permanent custody order from the court and then the child can live with you and his step father.  Yes, once you get permanent custody from the court, by following certain legal procedures, you can drop sirname from the child's name, because in law no where it is prescribed about the validity of sirnames or any other names as such.  The persons are entitled to change the names in the procedure prescribed by law and it is an easy process. 

Jimmy (Manager)     19 October 2014

Babita, once you are married and have a child, you are inseparably tied to each other. No matter what legal advice is given, your husband will get visitation rights, at the minimum, or custodial rights. So, he will interact with you and in the process, there will be scope for harassment by one party or the other. The only option out for you is to give total custodial right of your child to your husband and severe all ties with him. Even animals are incapable of such acts but some men/women do so, to get a truly fresh start in a new marriage.  Adv. Chandrasekhar has given proper legal advice. 

afreen   24 May 2016

To ,

Respected advocates

                 I was married in 2010 to a person in Saudi Arabia.I had a baby girl in 2011.

Since the birth of my child my husband has not been in contact.I received divorce certificate by post in october2012. Since her birth I have been bearing all her expenses.Myquestion is if my ex husband gives an NOC ,will I get court custody of my child and will I have to go to court.


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