what if 5yr old child refuses to meet father

An application can be filed in the proceedings that was initiated for mutual consent divorce and based on the grounds that you have stated you can make a prayer for stopping such visits till a time when the child is of a suitable nature though such an order is very difficult to obtain as the father has got rights to visit the child.

Is it not possible that the childs wish is considered in an interview and the court allows the father to visit only in the court. As the child is scared to stay there overnight. Can the childs wish be above the mutual consent which is decided by parents?

Sir,
Plain reading of your provided briefs states that in instance case Mother of the child due to some reasons does want the child to have access with his father, which to my opinion is a far reaching healthy sign and it also shows that the ex wife is afterall still has a good opinion on her ex husband especially she wants to give child a father.

Now, in this situation instead of going back to the Court for alteration of mutual consent terms and conditions it would be better if both ex couples sit together without the child and agree that they both will create a conducive atmosphere initially with shorter duration and later extending the duration of exposing the child to father and vice versa.

It is doable in presented case. Additionally the father should make more efforts with emotional bonding (holding / playing / showing signs of affection all these towards his child first) and also it is necessary to bring meaningful gifts as per age of the child and father should also initally show signs towards his ex wife of jolly good nature atleast in the presence of the child when she is there with child. 

By adopting give and take above working relations initially for first 2 - 5 visitations of short durations the child will adopt to come closer to the father and then it is upto the ex couples how they could extend the visitation hours into overnight custody and so on so forth. 

However, if in first 5-8 short visitations each week if above arrangments fails then it is better that the father stop the visitation and then approach his ex wife again when the child is in reasoning age and meanwhile he should not shy away to approach child care councelors for self counceling afterall he also wants company of the child.

All above is doable if both ex couples really want (moreover the father should be coming forward with imaginitative role play himself than the mother as in this brief I donot see much fault of the mother of the child) to do it otherwise it is better to stop all these postmortom exercise immediately as the child will be self torturing himself and grow up to hate both parents probably one day subject to company he is made to keep in growing years directly or out of past history of family as a choice.

There are helful NGO's / child sociologist now-a-days in lots of metro cities whom the father should get involved in slow but steady way for the best interest of the child over his inclination to samehow fulfil the mutual consent conditions as is meant out of the presented brief by you.

I also feel that some fault also there with the father or in posting here it seems he is shown as a bad person whatever I am not making a comment for or against but seems to me as a father fighting for my own girl child rights the fatherly feelings of this father is somehow missing in himself which can be overcome if counceling is done and it is also healthy for father himself too in the longer run.
Rgds,
D. Arun Kumar, New Delhi 

Thanking for your advise Mr arunkumar,

But although i have properly highlighted the problem here i have failed to gain your attention on the main point.

I have mentioned that father is suffering from a mental condition and its difficult to prove as he is a superintelligent (a scientist) in legal matters and also a sadist who does not have any emotional qoutient for the mother or the child. mother has been very cooperative and understanding throughout as she knows litigations would have no end in such matter.

But now she has to intervein as the child is hellbent on not meeting the disturbed father as the father doesnot offer him love neither he allows the child to call or meet mother when he needs her even when he's sick. Child literally hates the father( mother has not put that in his mind) and hence he is not willing to stay with him during half  vacation access agreed by the mother.

Now mother wants to move the court and she wishes the childs access to the father is reduced to day access and not overnight.  But would she be successful attaining it as she herself has agreed for overnight in the mutual consent.

Your above advise would not be much help as the case is different here. Mother is cooperative and father is a gone case.... 

Also father is not on talking terms 4 yrs post litgations also,  He never agreed for any type of counselling as he is scared to face the psychiatrists. His mental disorder is obvious as he murmurs to himself all the time and gets paranios and throws things.

But when mother tried to seek divorce on this ground , the father who is wealthy bribed her lawyer plus the court and evaded appearing in the court etc.... 4 yrs are past and the case was still nowhere. hence the mother had agreed to enter into a mutual consent and end the matter as in her case justice was SOLD to him. Such things happen sir with superich people!!!!!

Ok, now that you say so, I have re-read the briefs once again. I am sorry that I gave a hurried advise earlier.

Let me also take the situation in right prespective now;

1. The child is with mother. Right ?
2. The child is undergoing the trauma of experiencing / exposure of violent behaviour of father towards him as well as towards his mother vis-avis past and current situations he is subjected to. Right ?
3. The mother agreed to certain mutual terms and conditions and the couple got a decree made out of their mutual consent statements. Right?
4. The mother agreed for certain visitation terms and conditions and yet was given direction to retain the physical custody of the child with her against those visitation (including certain overnight vistations) terms. Right?
5. Now, seeing the child subjected to behaviour of father and also child not co-operating to custodial parents agreed visitation terms and conditions the mother is in delima as to how she should approach Court to change agreed consent terms and conditions. Right?

Now, to be frank here, as a neutral person I will say that Court does not allow back tracking mutual terms and conditions and there are umpteem Citations especially when children are involved in mutual divorce decree terms cases and Court may not allow her forthcoming pleas now.

But, again a neutral advise here would be that to approach Apex Court with all evidences of mental status (medical counceling refusal evidences father's behaviour towards child) as plaint matters and request Apex Court for directions to constitute a Medical Board to ascertain mental status of the ex Husband first and also request Apex Court to interview Child in current situation. Apex Court in my opinion will oblige mother for both as 'welfare of child' grounds.

But, I repeat 'but' again, given to understand the moneyrama of father he will put a big name member of the Bar against her on this Suit, so to overcome this she needs to collect evidences of father's past as well as present medical status which again is difficult but it is doable if one wants to really want to do it. She has to take a tough stand on how she can gather all these evidences otherwise I again say she is going to be pitted against not only a man with money but against the agreed consent terms which courts do not take lightly lateron.

There is no point approahcing lower or HC on above matter. There are recent judgments from Apex court on mental status check of either of the spouses and so are Apex court citations on denying not only custody but even visitations rights too but all these needs to be placed in a responsible way as pleadins matters and it is doable if mother takes interest first in studying child visitation / welfare of the child subject matters keeping emotions to right bare minimum this I say as she has herself agreed for consent terms and court does not allow backtracking in such consents decrees afterall she signed  (read agreed) with her wide open eyes. You may last wordings bit harsh but this is reality which she has to convince single bench or division bench Justice at apex Court whereever this matter may come up for hearing

The psy. profile of father will come out with "SDM IV" evaluation by referred team of psychiatrist whose names she has to give to Court. There are wonderful study done on child and erring parents relations by way of reportings in various medical Journals as well as precedents by Apex courts before us. Hence ask her to self study these and also approach child psychiatrists meanwhile to understand them too. It is all doable if a strategy is chalked out properly and there are handful of excellent child custody members of the Bar at Apex Court who may provide further legal help in this case when and if it goes on to litmus testing floor.

I hope this time you may get help and all above are doable with self study and understandings of how Law takes such matters when a consent terms and conditions have been drawn in to a Decree and backtracking is seen no matter for whatever reasons.

Rgds,
D. Arun Kumar 

Also study a basic citation to understand how denial not only of child custody but even for visitation are done by reading good number of times the reasoning given by a Hon'ble Justice of Chennai HC in N. Nirmala Vs Nelson Jayakumar, Madras High Court, 1998
click on easy link for full text of referred citation https://indiankanoon.org/doc/1680894/

Sorry for chewing bandwith on smae topic again and again. It would have helped all of us here to help you if you would have given the location of mother with child and also on Date of award of decree as the Limitationis for Appeal is 90 days at Supreme Court of India if any activity the mother of child may prefer.

I suppose the mother( my best frined) would be getting the decree on the coming monday thats 14th. She also has a mind to withdraw from conset in order to save the agony causing to her child. She is told by the lawyer not to withdraw and first get rid of the mentally sick man as he is harmful. sametime she has also withdrwan her DV case as part of the consent agreement.

since the decree is not yet passed should she just change her lawyer and find someone who can genuinely help for justice and would not be easily sold over money. Here the age of the mother is also 15 yrs lesser than the husband and husband has been certainly on medication as his family is descreet and behaves suspiciously in order to protect his mental condition. They have used theur money power to get him married to my frined and now to ruin her completely.  Can the mother ask the family court to conduct medical examination of his illness? are these examinations successful at the end of the day?

I thank you so much for your kind advise sir, it is really enlightening, Mother is in mumbai and the permanent custody of the child is with the mom. Also there is written evidence of criminal behaviour of the father with the mother, but the cases took too long , and also she brokedown seeing the corruption of police etc... It has been equally torturing to her as one police was paid to misbehave with her.

what should she do now to nail this person(her husband) down or get rid of him completely.

If she moves abroad what happens to the custody/access of the child, can that be a measure?

You gave us half briefs so the above replies were given.

However leaving aside all these kindly understand till a Judgment is announced in Open Court that also till it is signed by a Ld. Judge it is never a Decree in proceedings.

She can give in writing and or get recorded her verbal statement to Judge that she is withdrawing her consent unilaterally as she feels that she has been played by 'fraud' that is all.
Her consent terms now can't be challenged by her husband. Just after saying above she should place in application for "medical evaluation" of husband and trial court is bound to allow her request as per recent Apex Court citation.

She can also re-open her DV case once Mutual Consent is withdrawn but do remember to use "fraud" and instances of 'fraud' in the application while withdrawing ones consent.

You have not stated in your last mail which court has given "permanent custody"  of child to mother OR is it part of the terms of MoU of Mutual Consent? This is crucial piece of info. as she can then file application under Guardians and Wards Act for physical custody of child.

Husband has money, moving abroad during unfinished court hearings is not advisable as he can always approach court to bring her back along with child to Indian soil to face court cases.

Never expect that a matrimonial case once filed will be over in a fortnight time, it is like cancer one has to live with it till a proper management of things in existence is accepted as part of living reality rest are self made situations like having criminal evidences of husband and yet not able to use it at the rigth time & at the right place etc. etc.

For rest I don't wish to asnwer as they are half statements. Rest are all doable only if she plans to follow what was suggested in my last mail and she should not expect instant relief from Court as matrimonial cases are based on 'fault theory'.