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Anjuru Chandra Sekhar (Advocate )     29 April 2012

Deny allegations but accept divorce

OP was filed by husband on the ground that the wife's behavior was adulterous (no proof of s*xual intercourse with him, but submitted documents relating to chat which implies close contact between wife and her boyfriend) and she is medically unfit to consummate marriage and medical certificates submitted to that effect. Wife denied allegations of husband in her counter that her behavior was adulterous however accept for divorce because she is not prepared to live with a husband who makes such allegations and doubt her character.  Does this amount to Mutual Consent Divorce because what the husband prayed is same as what wife prayed?



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 6 Replies

Jamai Of Law (propra)     29 April 2012

It DOES NOT amount to a mutual consent divorce.

 

 

This may amount to counter plea and a prayer of a 'counter relief of divorce'.

 

 

 

Making such allegations which don't get proved (allegations on character ... fidelity ..... trust ...etc which is a foundation for a marriage) is a grave matter

 

 

So making such allegations.... it needs/expects a due care and thoughtfulness before doing so. 

 

 

Hence applicant's failure to prove such allegations is an instance of 'mental cruelty' committed by applicant on the opposite party.

 

 

And then opposite party becomes applicant for 'mental cruelty'.

 

 

Applicant should seize this opportunity and forward proposal for MCD to the opposite party. That would be the best and least damaging solution for both of them.

Anjuru Chandra Sekhar (Advocate )     29 April 2012

I want to know the court procedure.  Applicant forwards a separate MCD document to the respondent and when she accepts they will withdraw the OP and file MCD or the MCD can be part of OP already filed?

Adv. Chandrasekhar (Advocate)     29 April 2012

A contsted divorce case can be changed by way of two methods.  The presiding judge in his daily order sheet  allows the party to withdraw the contested divorce case and file MCD petition or the contesting parties move an application seeking the liberty to withdraw the contested divorce petiton to file afresh MCD petition on the same file.  If any one of this happened, both the parties move MCD petition in which there would be reference of contested divorce petition and withdrawal of it.  After that first motion statementes will be recorded and after six months the second motion statements will be recorded and divorce be granted.  In some courts, it is seen that six months period is waived due to long pendency of contested divorce case, but the correctness of that method is doubtful.  (If IRBM amendment is passed such waiver becomes lawful).  

Anjuru Chandra Sekhar (Advocate )     29 April 2012

@Adv.Chandu. Thanks for the reply. Before the divorce petition is filed both the parties (husband and wife) entered into a written agreement of which one of the terms is filing MCD and not filing any other criminal case against each other.  After entering into this written agreement which was also signed by the witnesses of both the parties, the husband deviated from the terms of agreement and filed one-sided divorce petition on his own making allegations against adulterous behavior of wife, presumably to tarnish her image by bringing it to the knowledge of society through court proceedings.  He submitted chat between his wife and her colleague as evidence which was available to him by hacking his wife's personal computer who happens to be employee in IT sector. But that conversation was purely based on the confidential acess the IT company provides to its employees on its company server others strictly cannot have access to it. And after filing the onesided divorce petition when I have given written statement of defense (counter) on behalf of the wife to be filed by the wife's advocate, the said advocate spent time up to first hearing without filing the counter.  Only Vakalat was filed in first hearing.  During the period of filing the OP and first hearing the petitioner was requesting for MCD, it was told by the Advocate of respondent.  But MCD was not prepared and signed. During second hearing that advocate's assistant (who attends court on her behalf, may be her junior), told the respondent, "I have no time to attend the court, you go and attend the court and seek time up to next hearing".  Respondent went to court and pleaded with judge to give time up to second hearing and a new date in the month of July, 2012 was given by judge. 

 

In these circumstances, the question is whether the advocate of respondent (wife) got colluded with the advocate of the petitioner and intentionally avoiding filing of written statement of defense on behalf of the respondent so that when court gives ex-parte judgment a presumption of acceptance of guilt for allegations made by the petitioner by way of not filing the written statement be used against the respondent and her colleague for any other legal proceedings against them?

 

If the respondent do not deny allegations by filing counter will it be presumed by the court that guilt is accepted and that judgment can be a basis for criminal action under IPC 497 (adultery) against respondent and her colleague?

 

 

 

Anjuru Chandra Sekhar (Advocate )     29 April 2012

Please read the last sentence in the first para as:

 

Respondent went to court and pleaded with judge to give time up to Third hearing and a new date in the month of July, 2012 was given by judge.

Adv. Chandrasekhar (Advocate)     29 April 2012

There are several inferences which can be presumed by the actions of the petitioner, judge and the respondent's counsel. First petitioner:  Even though he agreed to file MCD, instead he filed contested divorce on the ground of adultery.  There two presumptions arise: 1.  He does not want to pay maintenance and so he alleged adultery as a ground so that if he gets divorce decree, he need not pay maintenance or permanent alimony.  2.  Once divorce decree is granted on the ground of adultery, he wants to file criminal complaint against the male adulterer (he cannot make the wife accused).

2.  By not filing written statement, you cannot attribute any thing against the respondent's advocate.  He may be connived or not cannot be decided by asking just two adjournments.  But as an abundant precaution, on the next date, as you have already prepared written statement, get it filed, if every pleading is correct and will not harm the respondent in a long term.  Yes, by not filing the written statement by the respondent, the respondent first loses the right of filing the written statment meaning thereby losing to defend the case effectively.

3.  The judge also deviated from the normal course.  After filing of the divorce petition, the first duty of the judge is to mediate between the parties or send the parties to mediation for reconciliation.  On the next date, you insist for that and in mediation, and during mediation, if the petitioner insists for continuing the contested divorce petition instead of MCD, then his intentions are clear as I said para 1 above.


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