It has to be cancelled by application for cancellation. You can settle if you want but it will not be automatically cancelled.
Settlement for son
Dear all, My wife died during the divorce proceedings 3 months back. My 5-year-old son who was with my wife (at her father's residence), has been in the custody of maternal grandparents for the last 5 years. I've been paying maintenance of 10,000 per month (since 2017 - till date) as per a CrPC 125 order. Now (after my wife's death), the in-laws are asking me to do a 1-time settlement for my son, and asking me to assign them guardianship privileges. They want to change his name and surname also (replacing my initials with his mother's.) I've committed to giving 5 lacs as settlement now (although technically 1-time settlement won't apply for a father-son relationship). They're saying that they won't come back for money. My doubts are: If I give a one-time payment, will the existing CrPC 125 order stand canceled automatically? Or does this have to be canceled through the court separately? Secondly, can the guardian apply for revision of maintenance in the future when he wants? Are there any caveats if I give the guardianship to the child's maternal grandfather. I'm trying to avoid a situation where they take the 1-time settlement and come back after a few years asking for more $$$. Pls note that my in-laws are extremely cunning and greedy -- faced them for 7 years.
Asked 4 years ago in Family Law
Religion: Hindu
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12 Answers
1) you have to apply to court for modification of order
2) if child expenses have increased they can apply for increased maintenance
1. You have not mentioned whether 125 CrPC order of maintenance was for your wife or son.
2. If the order of maintenance was for your wife then it abated on her demise.
3. The maternal grandparents of child are not her guardians during the lifetime of child's father. One time settlement should be so drafted that it is full and final and does not carve any escape route for your in-laws.
You will have to reopen the case in the court and get these facts mentioned before the court or else file an application before the HC for arriving at such an arrangement.
Obtaining a court order to this effect will only be an effective remedy and do not enter into any settlement without a court order or a decree.
Hi, What ever settlement entered into between on behalf of you and your son, it must be through the process of the Court only. Don't entertain anything out of court. Better you can go for one time settlement it can be allowed as per law and it must be through the process of the Court only.
- Whenever you give one time settlement make sure you give it in court so 125 will canceled at the same time
- If you paid one time settlement as final instead of monthly maintenance they can not ask for monthly or revision but if you are paying monthly then yes they can ask for revision of maintenance as child will need more money for education, for basic necessary.
- that's why i insist whatever you take decision even for one time settlement make sure you give them through court so in future you won't have to face such issues
1. The petitioner died hence the case will stand abated if it is not represented by the legal representatives of the deceased petitioner.
You are the legal representative of your deceased wife and also you are the natural guardian to the child, hence you may inform court about her death and also your intention to settle the amount to your child and request court to dismiss the case.
The grandparents are not legal heirs to your deceased wife nor they are guardians to your minor child hence you do not have to legally entertain any claim made by them in this regard.
Since you are the natural guardian to your minor child, the grandparents cannot claim guardianship to the child and it is not maintainable, however they may file a case for child custody on the basis of the long custody of the child with them though they have to struggle to establish and succeed in this child case especially if you give tough fight and strongly object to their case.
Neither your in laws nor your wife (in case she was alive) can decide about not claiming future maintenance of the minor child.
The minor child can claim maintenance from its father even after becoming major by age, it cannot be refused as per law.
Dear Experts, Some clarifications: 1) It was me who filed the divorce case. 2) The CrPC order was for wife and son with their respective amounts mentioned. The Family court judge asks me to give a settlement for my son (who's with his grandfather for many years now). Does that mean the Family court judge will cancel the 125 CrPC order (passed in Magistrate court in 2017) if I pray for it? Or do I have to get the order of maintenance canceled by my wife's legal representatives (her parents) before I can do the 1-time settlement.
Asked 4 years ago
Sir,
There is only one thing which is either one time settlement or paying monthly.
Again, if you want to settle one time then submit application through your lawyer before court that you are ready to settle with sum of money instead of monthly maintenance of your child.
As on date order passed by court in section 125 cr pc is in force
you have to apply for modification of order as you are paying lumpsum amount for child maintenance
You don't have to accept the suggestions made by the judge of family court.
You can inform the court that you would like to take the custody of your minor child.
You may insist that in the absence of one of the biological parents, the child shall be taken care of by the living parent hence you voluntarily inform court that you are willing to take care of your child and to dismiss the pending case in the absence of LRs to continue to prosecute case.
Your deceased wife's parents are not her legal representatives especially when you and your child are alive.
You can discuss with your advocate on the basis of prevailing circumstances and decide further course of legal action.
1. Since the order to pay maintenance was qua your wife and child, it survives qua the son.
2. The order to pay maintenance to wife has become infructuous with her demise.
The said order can only be vacated when you file a consent term of settlement between parties. Otherwise it can't be mutually cancelled.