Praveen 14 June 2018

Divorce - Mutual Consent. wife chooses to be absent.

Dear Sir/Madam,

Please advise me if I am in the right direction in my case.

I am 37yrs old male and have had a very disturbed marital life. Even though we have been blessed with twins (boy and girl) thru ivf , destiny has it that we could never live as a husband and wife satisfactorily since 2008. Families and friends got involved for our patch up which also failed. We have numerous issues amongst us and we finally decided to part ways legally.

We filed a Mutual consent divorce in Sep2017 with elaborative consent terms with regards to child custody, maintenance etc. I was required to sell my Flat which is in my name alone and give 50% of its share as FD on children's name as security deposit, in addition to monthly maintenance.

However in March 2018 (post 6months cool off) when we both were required to be present she chose not to appear as she wanted more money than what was in Consent terms. She knew there will be adjournment due to her absence.
The dates of hearing therefore passed on to 13April and 11June2018 . And in all occasions she chose to be absent.

The result of which in June my lawyer prayed for an exParty order or a dismissal in order to appeal in High Court/Supreme court (on the lines of previously passed exParty order in a similar case in supreme court).

in view of above:

1. Am i an the right direction to appeal in high and supreme court subsequently for exParty order.

2. As my wife is getting greedy by the day and eyeing the flat can i gift deed it to my mother to avoid property hassles after its sale.

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14 Replies

Vijay Raj Mahajan (Advocate) 14 June 2018

Your ex-parte order request will fail. The divorce petition will be dismissed for non-appearance of your wife. As far appeal to High Court and the Supreme Court of India for getting ex-parte divorce order is concerned, that is your lawyer's way of thinking but that too may not succeed. Yes you can always file new divorce case against her on the ground of cruelty making all these failures and withdrawal of her agreement from divorce etc. as grounds of cruelty.

Praveen 14 June 2018

Thanks for ur reply sir. Yes, we got the dismissal on 11Jun and we are preparing for an appeal for higher courts.

what choice do i have when the opposite party ( here my wife ) chooses to remain absent date after date of hearings.

If my appeal fails ,

i will obviously be left with no chance but to
1. contest based on grounds of cruelty and other supporting points in my favor.
2. enter a fresh mutual consent terms . in this case will i need to wait for additional 6 months again or will there be leave granted for the same.

Vijay Raj Mahajan (Advocate) 14 June 2018

Go for independent divorce case on the ground of cruelty, no more divorce by mutual consent as she will again repeat the same once again.

Praveen 14 June 2018

In contest, are the terms decided by the judge? and just in case for mutual consent reapplication wil i get the leave for 6 months as it's already completed.

Vijay Raj Mahajan (Advocate) 14 June 2018

Judge will decide the case on the basis of pleadings and evidence of both parties not terms and conditions. What type of advocate you engaged who is unable to guide you properly. Kick that bugger out and get some sensible one for your case.

Praveen 15 June 2018

sir,
thanks for ur guidance. do u think I should have continued the mutual consent instead of having it dismissed? also in future will i need to again show 6 month separation in a case where we reenter into mutual consent.

Aman chawla (DELHI HIGH COURT ADVOCATE) 16 June 2018

Now you, if you want you can go for contested divorce on the ground of cruelty as taking steps back after giving consent to the mutual divorce, is considered as cruelty ( KAWALJEET KAUR V/S PARAMPAL SINGH, Punjab & Haryana High Court)

Apart from this, you can also file a civil contempt petition against the lady.

BUT!! BUT !!! I would recommend you to please withdraw the 2nd motion petition with a liberty to a fresh. Understand one thing you have time to convince her, as you can file a 2nd motion within 18 months from the first motion (which means you can file till March 2019). you still have time, you can convince her in this period of time and can file a 2nd motion.

Thanks,

Regards,

Aman Chawla

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Praveen 16 June 2018

sir , if I understand u correct..

1. You are in the opinion that I should withdraw my case and approach my wife for a mutual consent again as I am in the 18month time frame. However, i don't see we both arriving to terms as she has become greedy and wants to just drain me dry.

2. I will use that option after I appeal in higher courts as advised by my lawyer on the lines of Civil Appeal no.22913 of 2017 won by Mr.Ramu against Ms.Bharti in supreme court.

my Q is:
if such an appeal passes an exParte judgement , will the previously signed consent terms take to effect? if not, what would be the terms thus defined.

Aman chawla (DELHI HIGH COURT ADVOCATE) 16 June 2018

Sir, as per my knowledge is concerned no court will grant you Ex-Parte Divorce in mutual consent case.

So, please let us understand what is mutual consent Divorce? It means when both the spouses are ready to settle the matter amicably with mutual understanding. This means there should be a Mutual Consent between the parties. Now if there is consent involve then any party can step back from his consent and no court can force someone to do any particular act.

“Despite Settlement Agreement, Courts Cannot Compel Party To Consent To Mutual Divorce” RAJAT GUPTA V/S RUPALI GUPTA Delhi High Court.

So that’s why I told you to make her convince.

Or go for Contested Divorce on the ground of cruelty and file civil contempt against her for taking her steps back in Mutual Proceeding

Thanks,

Regards,

Aman Chawla

Vijay Raj Mahajan (Advocate) 16 June 2018

If your divorce by mutual consent case got dismissed by court on 11th June how you can withdraw it ? Is the adviser here not reading this before advising you to withdraw 2nd motion petition with liberty to file fresh one? The filling of second motion petition is process only in Delhi courts and not everywhere in India, secondly as already the complete case of divorce by mutual consent dismissed how it can be withdrawn?

Vijay Raj Mahajan (Advocate) 16 June 2018

Judgment of Supreme Court allowing divorce under Article 142 of the Constitution where the wife didn't appear of second motion was an exceptional case you cannot take that as general rule and the special power under Article 142 is only with Supreme Court not High Court, if your advocate is advising you like you said than his intention to make more money out of you by moving appeal against the dismissal order that appeal will not even be admitted by High Court.

Aman chawla (DELHI HIGH COURT ADVOCATE) 16 June 2018

@Vijay Sir with due respect,

Sry sir it was my mistake, I gave advice on the query and have not read the comments section fully.

And I still, advise him if the petition got dismissed he can still try to convince her and can file a second motion within 18 months from the date of the first motion.

Or he can go for contested divorce on the ground of cruelty.

But filing an appeal will not serve the purpose as the courts cannot compel someone to do any particular act.

Thanks,

Regards,

Aman Chawla

Vijay Raj Mahajan (Advocate) 17 June 2018

Petition for second motion in MCD is done only in cases filled in Delhi. Outside Delhi only single petition for MCD filled and same is taken up at the time of second motion. In this case it's very clear that single petition for MCD filled and that got decided as dismissed. No fresh petition for second motion can be filled now within 18 months period after dismissal of main divorce case and so advising to file a fresh petition for second motion in MCD after the main petition already dismissed is absolutely absurd. I already advised this person for filling for independent divorce case on the ground of cruelty nothing new in that.

Praveen 17 June 2018

sir, kindly re read my msg.
I am talking about appeal in higher courts and not petition.
one Q which I have been asking repeatedly: will I need to wait another 6 months if at all we arrive to a mutual consent.