Mutual Consent Divorce and issues related to child

The concept of mutual consent divorce was brought before the Parliament of India through the Amendment of 1976 in the Hindu Marriage Act. It is a matter of fact that mutual divorce is comparatively an easier means to get separated from your spouse. The parties intending to seek mutual divorce are often confused as to how to initiate the process, the role of the court, terms, and conditions of mutual consent divorce, issues of maintenance and child custody, duration, the place of filing, and other allied questions.

A mutual consent divorce proceedings initiate when both the parties to the marriage i.e. husband and wife want to terminate the marriage. They decide to get separated by mutual consent. According to the provisions of the Hindu Marriage Act, 1955, both the husband and the wife have the right to dissolve their marriage by a decree of divorce on various grounds provided under Section 13 of the Act.  Further, Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent.

Initiating mutual consent divorce

When deciding that you want to get separated you should talk to your spouse about the future course. If both of you conclude that marriage is not working and your relationship is not smooth then you should proceed with the mutual divorce. It is you who have to decide what the best is for you.

Issue of child custody in Mutual Divorce

If a child is involved then both of you should mutually decide about child custody and visitation rights. Parents can mutually decide the child custody during summer and winter vacations and other holidays. Both parents are equally competent to take custody of the children. It is the understanding and agreement between parties that prevail. Both the parents may also agree on joint custody or shared parenting of the child in the mutual consent divorce process. This saves children from avoidable suffering.

In Shri Rajinder Kumar Mishra v. Shrimati Richa[i], the court held that the child’s welfare is of paramount consideration while dealing with the issue of custody. The court has to decide the best interest of the child while granting custody.

Factors considered by Courts

The court considers the following factors[ii]:

• Financial stability of the custodial parent;
• The mental and physical well-being of the child;
• The child’s comfort while growing up;
• The intention of the custodian i.e. it should be for the benefit of the child;
• The child’s welfare, growth, and safety are paramount;
• The overall growth of the child in a healthy environment.

Child’s welfare is paramount

The child welfare principle focuses on two major goals:

1. Ensuring the overall growth and development of the child, it focuses on the child’s best interest while dealing with custody related issues.
2. In the public interest considering the children optimal growth. In Vivek v. Romani Singh[iii], the court concluded that the child-centric human rights law has evolved and is emphasis on the overall development of child, who is the nation’s future, is in the public interest.

In the case of Rosy Jacob v. Jacob A. Chakramakkal[iv], the court held that paramount consideration is the welfare of the child.

In another case of Vasudha Sethi & Ors v. Kiran V Bhaskar & Anr[v]– Justices Ajay Rastogi and Abhay S Oka stated while dealing with the issue of child custody and repatriation of the child to the home country should be dealt with considering child’s welfare[vi].

Joint custody to parents

Joint legal custody or joint parenting means that both parents have equal rights and access towards the child. It includes the child’s education and upbringing, and both the parents would share the physical custody of the child having equal contact with the child. The court promotes shared parenting or joint custody and ensures that non-custodial parents should get proper/ frequent access to the child.

Elizabeth Dinshaw v. Arvind M. Dinshaw[vii], the Apex Court held that child’s welfare is paramount and should be given due weightage while deciding the sensitive issue of child custody. In the custody battles between the parents, the psychological equilibrium of a child is majorly affected, and the parents forget that in their dispute the major sufferers are their children.

Settlement of finances and custodial issues

It includes alimony, maintenance, educational expenses, the marriage of children, stridhan, joint investments, and many others. Parties should calmly discuss the issues and reach their solutions. You can also approach expert lawyers to bring settlement speedily[viii].

The custodial parent holds responsibility for the emotional, medical and educational expenses of the child. The non-custodial parent does not lose the rights over the child and will have access to the child. There is a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. As mentioned above, the child’s welfare is paramount when deciding the issue of child custody. The parent taking care of the child’s emotional, educational, social and medical needs is the only criteria to determine child custody.

The earning capacity of the parent is not the determining factor for child custody but the determining factor is the capacity to provide a safe and secure environment. There is no straight-fit jacket formula that a non-earning mother will not be disqualified to get child custody and an earning father will get it. While the mother is the preferred custodial parent when the child is of tender age, once the child attains a discernible age, his/her wishes will be considered to decide the same.

The non-custodial parent may get weekly, fortnightly, or monthly access to the child. It could be just day access or overnight access with a gradual increase including weekend and/or vacation, access on special days, etc.

The Supreme Court was bent on giving a mother custody of her minor (aged below 18 years) but the child wanted to live with her father after the couple was mutually divorced. The court considered, “The factors which weigh in favour of the appellant (The one who filed appeal i.e. filed the case in the second stage) were that the child was living with him from the tender age of 21 months. She was happy in his company.” Hence, the Court decided that the father would get custody of the child[ix].

Conclusion

Child custody in India depends on personal laws r.w. the Guardians and Wards Act, 1890. While parents seek divorce by mutual consent they may also decide the issue of child custody, however, if the same is not mutually decided then it shall be decided by the court considering the welfare of the child. Preferences are given to the parents and the child but it is the court that takes the final decision regarding the custody of the child[x].

---

[i] AIR 2005 All 379

[ii] https://www.thebetterindia.com/195917/supreme-court-child-custody-law-mother-father-divorce-case-legal-india/

[iii] (2017) 4 SCC 573

[iv] 1973 (1) SCC 840

[v] CRIMINAL APPEAL NO. 82 OF 2022

[vi] https://lawtrend.in/rights-of-parents-not-important-the-welfare-of-child-most-important-in-custody-battles-sc/

[vii] 1987 (1) SC 42

[viii] https://www.businesstoday.in/magazine/cover-story/story/divorced-all-you-need-to-know-about-child-custody-rights-37954-2013-03-20

[ix] https://www.thebetterindia.com/195917/supreme-court-child-custody-law-mother-father-divorce-case-legal-india/

[x] https://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html