Can a decree be modif/amend u/s151 seeking permanent custody
Querist :
Anonymous
(Querist) 02 September 2018
This query is : Resolved
Question 1. Can a decree be modified / amended u/s 151 seeking permanent custody instead of joint custody due to change in circumstances
2. What are the remedies available to the Husband to counter the above application to challenge the maintainability of this petition
My Estranged spouse/Wife has filed Miscellaneous Application seeking modification / Amendment of a Decree under section 151.
What is she wants to Amendment /
Modification of
# She wants permanent custody of the child instead (as per decree) it is joint custody under change of circumstances as she wants to relocate to U.K after remarriage
Background of the case
#Divorce files by wife in 2010 in HMA
# Pettion converted into Mutual Consent 2014 and Decree obtained in 2014
# Mutual Consent terms part of the decree # Other terms relating to child in consent and decree
A- Child in joint legal custody of both
B - Physical custody with mother
C - Access terms as agreed
D- Agreed that child will not be relocated out of INDIA till she attains the age of 18 years
E- In case the child is traveling out of India she will travel only on visitors visa for pleasure trip
F- Passport of the child with my ex wife Question 1.
Questions
Can a decree be modified/amended u/s 151 due to change in circumstances
2. What are the remedies available to the Husband to counter the application maintainability of the Application
KISHAN DUTT KALASKAR
(Expert) 02 September 2018
Dear Sir,
My answers are as follows:
1. Can a decree be modified / amended u/s 151 seeking permanent custody instead of joint custody due to change in circumstances
Ans: Yes, provided both of you come forward for such change or the other party has a right to object for such new proposal.
2. What are the remedies available to the Husband to counter the above application to challenge the maintainability of this petition My Estranged spouse/Wife has filed Miscellaneous Application seeking modification / Amendment of a Decree under section 151. What is she wants to Amendment / Modification of # She wants permanent custody of the child instead (as per decree) it is joint custody under change of circumstances as she wants to relocate to U.K after remarriage Background of the case #Divorce files by wife in 2010 in HMA # Pettion converted into Mutual Consent 2014 and Decree obtained in 2014 # Mutual Consent terms part of the decree # Other terms relating to child in consent and decree A- Child in joint legal custody of both B - Physical custody with mother C - Access terms as agreed D- Agreed that child will not be relocated out of INDIA till she attains the age of 18 years E- In case the child is traveling out of India she will travel only on visitors visa for pleasure trip F- Passport of the child with my ex wife Question 1. Questions Can a decree be modified/amended u/s 151 due to change in circumstances 2. What are the remedies available to the Husband to counter the application maintainability of the Application.
Ans: The paramount consideration is the welfare of the child. The land mark judgment on this issue is as follows.
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Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
Dr J C Vashista
(Expert) 03 September 2018
Why do you not rely upon the advise of your lawyer contested your case, who is well aware about the facts and circumstances, competent, able and intelligent enough to satisfy your questions?
Second opinion and obligation of experts on this platform, although it is available FREE OF COST, is bound to differ as it is based on limited information provided by you. Do not adventure.
However, still if you feel strong about your questions/queries which your lawyer is unable to satisfy, show the case file (complete case) to a local prudent lawyer for analyses and guidance.
BAALASUBRAMANNYAMM
(Expert) 04 September 2018
while reading your query, I came to a decision that you have thorough legal knowledge. I think Kishan Dutt Ji has clarified your doubts.
