Divorce though absent in mcd procedure?
Law Querier
(Querist) 18 May 2013
This query is : Resolved
My advocate told me today if husband remains constant absent after entering petition for mutual consent divorce -Sec.13B in family court, then Court can pass divorce decree in favor of wife considering signed mutual consent divorce petition of husband and an agreement/MoU made on stamp paper for mutual consent divorce by husband-wife. I am confused with my advocate opinion. Is it possible? Pls. solve my query.
Kiran Kumar
(Expert) 19 May 2013
Well if the court comes to the conclusion that after signing the papers, the husband is willfully evading the judicial process then the court may grant such a decree.
Shantilal Pandya
(Expert) 19 May 2013
Though it is not impermissible to pass a decree as prayed for in such a case , the courts may look for more assurance against misuse of the process of the court,the concerned riders under Section 23 of the Hindu Marriage Act against the decree may well be applicable
prabhakar singh
(Expert) 19 May 2013
Ordinarily it does not happen as you are advised but in exceptional circumstances of a particular case a court may find justification behind passing such a decree.
Law Querier
(Querist) 19 May 2013
I think I have only two options now for not getting divorce: either I withdraw the petition or I will absent in second motion/court procedure.But, I think in both options court will consider the agreement/MoU of mutual consent divorce and grant divorce. Is there any solution for not getting divore in this matter? What is experts advice?
V R SHROFF
(Expert) 19 May 2013
If you do not want Divorce, you withdraw the petition. Why take chance or k by remaining absent in second motion/court procedure. So appear and withdraw your consent.
It is safer and sure.
ajay sethi
(Expert) 19 May 2013
you can before the order is passed for divorce withdraw your consent . even if you remain absent the court wont pass order for divorce . your presence and consent for divorce by mutual consent is necessary
ajay sethi
(Expert) 19 May 2013
SC lifts time bar on mutual consent divorce
Dhananjay Mahapatra, TNN Apr 19, 2011, 01.11am IST
NEW DELHI: It could now be tough for estranged partners to end their marriage by mutual consent. For, the Supreme Court on Monday said either husband or wife could withdraw consent to divorce any time before the decree is passed by the matrimonial court.
The divorce provision in Hindu law provided that once the application for dissolution of marriage was presented before the competent court, either of the applicants could withdraw the consent within 18 months.However, a Bench comprising Justices D K Jain and H L Dattu said even if husband or wife withdrew consent after 18 months but prior to passing of the decree, the court could not grant divorce.
"It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties," it said.
Justice Dattu, writing the judgment for the Bench, explained, "In other words, unless there is a complete agreement between husband and wife for dissolution of the marriage and unless the court is completely satisfied, it cannot grant decree for divorce by mutual consent. Otherwise, in our view, the expression 'divorce by mutual consent' would be otiose."
Hitesh and Deepa, who were married in 1994 and had a girl child, made a joint application for divorce by mutual consent in August 2001. But Deepa withdrew her consent in March 2003 after a period of 18 months. The husband wanted the court to consider this as time-barred and grant him divorce. On the other hand, Deepa said she never wanted divorce and wanted to live with him.
After failing to convince the court about the time bar on withdrawal of consent by the wife, Hitesh told the Bench that the marriage had broken down irretrievably, both being estranged for the last 10 years.
The Bench turned down this plea too and said, "It is under extraordinary circumstances that this court is compelled to dissolve a marriage as having irretrievably broken down."
It turned philosophical and said, "Marriages are made in heaven, or so it is said. But, we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with."
Law Querier
(Querist) 19 May 2013
I have query in this paragraph:
Justice Dattu, writing the judgment for the Bench, explained, "In other words, unless there is a complete agreement between husband and wife for dissolution of the marriage and unless the court is completely satisfied, it cannot grant decree for divorce by mutual consent. Otherwise, in our view, the expression 'divorce by mutual consent' would be otiose."
There was an agreement/MoU made on Rs.100/- stamp paper for mutual consent divorce and also give consent in applied petition of mutual consent divorce.
Is this agreement and applied petition of MCD(13B) before court consider as Complete agreement between husband and wife for dissolution of marriage as writing in the explanation of judgment for the Bench by Justic Dattu?
V R SHROFF
(Expert) 19 May 2013
HEIGHT OF REPEATATIONS::::::::
OVER 66 TIMES ,in a year by Chirag,
[BEFORE 3 DAYS ]""
Chirag,
Husband should keep quite for 5 months,
At 2nd motion,Do not appear,
OR
DO NOT GIVE YOUR CONSENT & AFFIDAVIT.
MCD will automatically be REJECTED.
At the same time, all her allegations before Police will fail, as it is result of your disagreement for MCD.
Is this related to Canada POA for MCD??
[A YEAR AGO]
My wife has filed divorce petition against me on mental cruelty ground in India.She is in Canada and I am in India.Petition filed by POA to her father.I don't agree to divorce.Her residential address mentioned in Divorce petition and in POA is not current address but it is her previous/old address. I don't know where she is residing now.There is no communication with her and with in-law members now.1)How can I know her current residential address? 2)Is it my legal right to know her current residential address in canada?
Note:A)She has mentioned her address of India in Petition and in POA.But she is living in Canada since seven years.
[A YEAR AGO]
Thank you Makkad sir,Shonee sir and Shroff sir..
sorry,I was not mentioned some information of my case.here it is....
We have married on Feb.2011 (just one year has completed). No child. She lived only 25 days with me after marriage in India.She went back to Canada after marriage.
SHE WAS LIVING ON THE PREVIOUS/OLD ADDRESS ON THE DATE MENTIONED IN POA AND PETITION.i.e.,She moved from her old address after producing POA and petition.
But, Now where she is living I don't know"""
HEIGHT OF REPEATATIONS::::::::
YOUR QUERY SEEMS REPEATED OVER 66 TIMES , WITH REPLIES GOES TO 500 PAGES::::::
On the same Subject.
Neither you accept the advise of Experts, nor you listen to your Advocates..
Shantilal Pandya
(Expert) 28 May 2013
simply said the court cant grant divorce except on consent of both the spouses in the given case.
