Divorce by mutual consent
Querist :
Anonymous
(Querist) 10 September 2010
This query is : Resolved
I and my wife are living separately since one and half years. She is working. SOn of 7 yrs is with me and daughter of 4 yrs is with her. The talks of living together were on for all these one and half years. I used to visit my inlaws place and we have spent 15 days of vacation together. But now it seems that, our marriage will not continue in these circumstances. I have few quarried in this regard:
1) since one and half years we are not living together. She got ration card separately and gas connection for herself. But we used to meet and also spent 15 days together. She is working, but not tried to get transfer to my place. My question is in the situation above, after 6 months can I claim divorce on the ground of desertion?
2) What is the recent legal status of 6 months mandatory period after filing divorce on mutual consent?
3) If she is ready for mutual consent and to look after daughter, is is necessary to give alimony? She is working and earning around 20K pm.
4) Her working timings is 4 m to 11 m. Can I ask for custody of daughter on the ground that, she is not able to look after her..?
Adv Archana Deshmukh
(Expert) 10 September 2010
2 years continuous desertion prior to the filing of the petition is necessary to claim divorce on the ground of desertion. If you go for divorce by mutual consent then at present, there is a 6m mandatory waiting period before the second motion. It is better you resolve the custody issue of the daughter by talking amicably as the son is already with you. However, if the daughter is to remain with her and your wife demands maintainance for the daughter then you'll have to give maintainance for the daughter.
M/s. Y-not legal services
(Expert) 10 September 2010
1.as per indian law the desertion should be as minimum two years.. even its not matter you may proceed your case..
2. then if you filed mutual divorce mean 6 months periods is mandatory.. even you can dispense the 6 months periods by a separate petition.. provison is there..
3. i do not know your clear situation. so not sure about get custody of your daughter.. but surely you can get visiting rights. court will not stop you for that..
but, as s friend my advise is try to convince your wife.. you didn't mentioned about about your job.. if your wife not getting transfer her job mean you may get transfer your job to her place.. whats the ego with that.?
Amita Chaudhary
(Expert) 10 September 2010
As you mentioned the age of daughter is 4 years, in that case you cannot ask for her coustody from Court unless u show that it is in the interest of child and your wife is not able to take care of daughter as SC has held that below 5 years age girl child custody should be with the mother only. yes you have to pay for Daughter's maintainance depending upon your salary and expenditure on the child even if you two go for mutual divorcee unless you and your wife enetr into some settlement in relation to that.... yes the period of 6 months is mandatary as per the latest judgment of the Hon'ble Supreme Court after 1st motion of mutual Divorcee for filing 2nd Motion before the Court...
Hope your queries are satisfied...feel free to revert
s.subramanian
(Expert) 10 September 2010
The period of 6 months cannot be dispensed with by any court in India and the supreme court of India alone has retained such powers under Art.136 of the Constitution of India.
M/s. Y-not legal services
(Expert) 12 September 2010
Good morning to everybody.. Mr.subramaniam sir, are you correct? Cos in my office case, i dispensed the six months periods.. For mutual divorce we can dispensed the six month period..
