Agreement between husband & wife

Nilesh (Querist) 17 November 2016 This query is : Resolved
Sir can we make a agreement between us that if we migrate to other country both of us cannot file any police or law case against each other an custody of our children will be joined till they get married.

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Guest (Expert) 17 November 2016
Such agreements would be Invalid Legally.

Devajyoti Barman (Expert) 17 November 2016
Agreement in restraint of legal proceeding is void an initio.

Kumar Doab (Expert) 17 November 2016
Agreed with experts.

Rajendra K Goyal (Expert) 17 November 2016
Such agreement is invalid.

H.M.Patnaik (Expert) 17 November 2016
Agreed with expert opinion.

J K Agrawal (Expert) 17 November 2016
Learned Friends.
I agree with you all and my opinion is also the same as you.
However I would like to avail an opportunity to think somewhat different.

This matter is family matter. In such a case the parties some what free to adopt an alternate way to resolve the dispute.

The CPC itself contains such a provision. The Intention of Order XXXIIA of CPC is that the parties should settle the matter as their own terms instead of legal stricture.

An agreement that the dispute shall be first tried to be resolved out of Court and by ADR is not totally bad in law. Further the Legal Services Authority Act also support the idea of adopting Alternate Dispute Redressal System.

May be the such an agreement is not competent to restrict or oust the jurisdiction of Civil and Criminal Courts yet no doubt, it has some legal force within it.

Kumar Doab (Expert) 17 November 2016
Expert Mr.J K Agrawal,

Your observations are interesting.
In such matters if such agreement can have legal acceptance then it can provide relief desired by parties involved.

Kindly elaborate more and provide some more inputs.

Devajyoti Barman (Expert) 17 November 2016
Mr Agarwal may be trying to say adopting the Alternative Dispute resolution mechanism which includes conciliation and arbitration as prescribed under SECTION 89 OF CPC.

Please note that marital dispute can not be resolved through Arbitration and Conciliation Act, 1996 or it is barred .

Ms.Usha Kapoor (Expert) 18 November 2016
Agreement in restraint of legal proceedings are void abinitio.

J K Agrawal (Expert) 18 November 2016
Dear Barman Sahib
Namaste
It is true that Arbitration not applicable in family matters. It should be so.

The Reason is that the Family relations are 'Right in Rem' and the same could not be governed by wish of any body.

But at the same time, when it is question of maintenance amount quantum, temporary custody of child, the day to day rules of life when a husband and wife are under conflict - the rules are set by elders of family or some persons and well wishers. These are not judgment in Rem. Such a small decision can be taken even by parties themselves.

Take an example:- Parties them self can not decide that they are divorced now but they can decide that husband will give Rs 10000/- per month to wife. (And can enforce it by Law.)

Such a decisions which are deciding 'Right in Personem' can be (and should be) matter of arbitration.
Thanks

Siddharth Dev (Expert) 18 November 2016
Law is all about rites and an effort to curtail rights will amount to illegality doesn't matter law of this country or another country but the principles are same so I suggest you the effort which you are going to think will be in-operative in this country and another country and such agreement will be void

Siddharth Dev (Expert) 18 November 2016
There are few exceptions by which Judiciary have power limit rights when there are some amicable settlements. And I suggest you before making any valid agreement you should contact your lawyer and give him the context under which you want to prepare such agreement.

Thank you

Rajendra K Goyal (Expert) 18 November 2016
Such agreements are not in practice in India.

Kumar Doab (Expert) 18 November 2016
The strategy of lawyer does help in resolving the matters.

Lawyers like a scientist also innovate.

It is a good discussion to gain from it.

H.M.Patnaik (Expert) 18 November 2016
All said & done, the problem seems to revolve around ensuring the marital status as it is till marriage of off springs in order to avoid any social problem.

If both parties have mutually mooted the idea, then there is no necessity of an agreement between the parties to this effect.

Let family seniors and wellwishers sit together with both the parties to give the understanding a documentary shape and abide by the same till the agreed period.

Agreement between husband & wife

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