Affidavit on stamp paper is divorce decree?

Law Querier (Querist) 28 May 2012 This query is : Resolved
Husband and wife were living in rural area. Husband and Wife married and registered their marriage. After some years, they mutually agreed for divorce. Advocates in rural area made an affidavit on Rs.500 stamp paper about agreement of both to separate mutually each other. They had not appeared for MCD and not having a decree of divorce from court.
My question is, 1) is this type of agreement is applicable in law? Is it legal or illegal? 2) Can Husband/Wife marry again on this agreement? If they marry then he/she can put in trouble? Is it legal or illegal?

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R.K Nanda (Expert) 28 May 2012
1.No, it is illegal.

2.No, they are already married.

3.Illegal as they are already married.

Shonee Kapoor (Expert) 28 May 2012
I agree with Ld. Nanda, however this agreement for divorce by Mutual Consent can be used to obtain divorce in court.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

Shonee Kapoor (Expert) 28 May 2012
This agreement can also protect you against any cases filed by you by helping you get bail and all.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

ajay sethi (Expert) 28 May 2012
it is illegal does not amount to divorce .husband cannot remarry again .

V R SHROFF (Expert) 28 May 2012
It is illegal . Not divorced.

Sudhir Kumar, Advocate (Expert) 28 May 2012
Yes I do agree with the experts that such divorce has no legal value. But to my surprise the rural advocates are practicing such divorce.

Mr Kapoor appears to have understood the document in depth.

After all the matrimonial obligations are only a bundle of civil rights to be used against actionable civil rights. In this agreement both the parties mutually relinquish their civil rights in favour of each other (including action against other marriage, maintenance etc) and promise not to disturb each other and soon both the parties remarry and do not bother each other.

In this way the girl is not forced to file false dowry case to secure divorce and boy does not have to ill treat her with intent to coerce separation.

Now coming to the questions raised :-

1) is this type of agreement is applicable in law?

Ans : This is not an agreement in restrain of marriage but agreement to restrain action for rights arising out of marriage. Partially enforceable.

Is it legal or illegal?

Ans :t is not legally complete divorce but cannot be said to be illegal outright. it has social acceptability.

2) Can Husband/Wife marry again on this agreement?

Ans : Offences like bigamy and adultery are non-cognizable and both the parties have on consideration of promise by other have agreed to refrain from same.

If they marry then he/she can put in trouble?

Ans : Generally they do not. They can if they so desire and if they subsequently get more enlightened.