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popye abcd (worker)     28 July 2010

498a and divorce

My 498a and dv case are at a point where we have given off settlement money to the advocate of girl via a draft in name of girl and some via cash in lieu of lifetime maintenance and streedhan and in the agreement document for this its written that the draft would remain with other side's advocate until all their cases are quashed by them. Their advocate & our advocate have also signed on this agreement document. The document states that both the parties would draw back the cases that they have initiated against each other. The dv case has been withdrawn while for 498a they have signed affidavits negating the fake beating incident on which 498a was based. But it has been stated in agreement that the girl and me would live seperately hereafter. This 'seperately' was intended to mean that we would go in for a divorce (though not clarified to this extent in that document) but now our advocate, since he had already filed divorce from our side is contesting the case from our side instead of going in for a mutual consent divorce telling us the reason that a contested divorce would take lesser time since the girl wouldnt appear at the dates as agreed with the other side verbally so that it would be finished in quite lesser than six months time that a mutual consent divorce would have taken. Is it safe for us to continue this way or since the other side has already received the money (as we know), can the girl come up at the proceedings of this divorce case & put up any other allegations instead of beat up that she has denied in the affidavits. In that case can any criminal proceedings be reinitiated against us by the court if the girl's side so alleges. So should I take back the divorce case and let the other side go in for a mutual consent divorce since they too want divorce or should I let my divorce case proceed.


Learning

 10 Replies


(Guest)

1. With respect to ld. Advocate of yours his advise is totally wrong.

2. When an Agreement has been signed / witnessed / payment held in escrow custody then what is the fear to route all these via a MCD ? Why you folks are in a express hurry to get Divorce !

3. An ex party divorce decree taken the way he is saying can go for appeal as no agreement / compromise deed in court records except ex party of other side for "material consideration" morover when agreement reached between parties / no issues on past / present / future maintenance already done by DD and then other serious cases in hand the best practice here is MCD nothing else.

4. Even for consideration if you are planning for overseas posting just tomorrow flyign out and / or do not have time to wait for MCD cooling period then delegate a POA to yoru parents and your parents are their for vouchign you as witness and moreover via web camera proceedings via Consulate from overeas postings if that the case be could always be done as is the current procedure of various Courts to facilitiate MCD for couples living in bi-polar locations.

In my opinion your ld. Advocates provided route one should not take and it is sucidal too.

Ld. members may correct me on above advise.

Rgds.
PS.: MCD = Mutual Consent Divorce

Mohd Musabbir Ansari (Legal Practice/Litigation New Delhi 09582547570 )     28 July 2010

Dear Popye

There is nothing wrong to contest your previous filed divorce case. No need to file MCD.


(Guest)

@ Sh. Ansari

Ok, now if he gets ex Party Divorce and in future suppose she comes back to Court challenging the ex Party Decree then what your kind advise will be to such Appeal ?

I am curious to know from your kindself since there has been so much hue and cry after Jain Art. 142 Hon'ble SC Judgment that many a people are finding it difficult to seek Divorce as they donot want to wait for MCD cooling period.

Rgds.

popye abcd (worker)     29 July 2010

Respected Arun ji, there is one more thing that after we have had the settlement signed the other party has registered a 125 maintenance case whereby they have requested the court to ensure that a hefty amount be paid by me as maintenance to the girl. Moreover the girl has replied in writing to the divorce case alleging newly framed allegations other than the earlier fake beating incident that she has denied in the affidavits, and has denied consent to divorce requesting that this div case be quashed. My advocate says that this is as per the procedure of the court and needs to be followed and that the other party wont anymore make any objection or appear on div. case dates so that the divorce would be assuredly attained ex-parte by us; and similarly in answer to their maintenance case we have submitted a written reply mentioning the draft details and my lawyer says that I too need not attend their maint. case dates so that the court would decide this also ex-parte in favour of the girl accepting as such the maintenance as already exchanged & as detailed in our settlement.

This hurry is so explained by the other party's lawyer that the girl's marriage has already been arranged somewhere else, for which they were asking for all the money in advance before any settlement. So even though I would ask my lawyer to go for mutual consent div, (and update with counter explanations if any) please advice whether by all this the other party is deceiving & dragging me into something dirty since most probably the draft and money has already been handed over by their advocate over to them and only our two advocates are witnesses to the settlement. please advice.


(Guest)

@ Popey,

Just quick que to you;

1. The attachment that you sent to me is in Hindi but to me it looks a Panchayat Agrrement OR a Notary Agreement - is it right or not ?

2. Your Lawyer is WRONG to say that after Agreement she can file and continue S. 125 CrPC and that also ex party. Suppose court awards 20 Lakhs whereas agreement and payment that you have already paid is 8 lakhs then will this lawyer pay form his pocket kya ! He is taking you all for a ride.

3. There is nothing called ex party Divorce when Agreement and Payment in place all these needs to come into writing in a MCD, these people are by passing all Supreme Court Laws such as follows:-
  - SC says that a wife can forgo her civil maintenance but not criminal maintenance so your lawyer tricked the
    court by not only agreeing for civil maintenace but filed agter civil agreement a criminal maint case and
    getting it ex partied but if this case opens up then there is nothign to show that she actually forgo her
    criminal maint. part.
 - SC says a decree of divorce without undergoing mediation which is mandatory is null and void. Your lawyer
   is by passing this phase by getting it ex partied which means no mediation ever happened so where is the
   que. of showing agreement and payment already made as material consideration if this case ever opens 
   up.
- There are so many things this case is witnessing which is not at all as per procedures.
 

However, if you like you may call me at 981162 4141. I donot charge for such advise neither I am a lawyer nor I will ever recommend you a lawyer name but I fight these false and frauds cases by sharing knowledge and citations which is enough for a common man like you to understand where things are moving in wrong direction..

Rgds.

popye abcd (worker)     29 July 2010

Dear sir, i havent send you any attachment but the agreement in my case is a notary agreement. The criminal maintenance case is infact filed by the girls side and our lawyer states that I dont have to attend its dates so that its to be ex-parte in favour of girl so that the money exchanged comes on record, but as you say if its not as per our agreement terms any ridiculous amount if so decided could really be quite against us. So sir the information that you have shared is quite an eye opener to me and I would seek answer from the lawyr. So all what you have said implies that I should submit an application with court to withdraw the div case and see if now the other party is ready to file with me the MCD. If its not so what should I do, I have already given off the money. Also sir please advice me anything else that I need to be carefull about or the steps i need to take.

(Guest)

1. Covert present Divorce into MCD by a simple aplication annexing agrement and payment given stuffs. Ask her to withdraw S. 125 saying withdrawn as compromised.

2. If you withdraw divorce the S. 125 CrPC award in your presence or as ex party is not going to be withdrawn had that been the case they would not have filed it in the first place when agreement there as well as money they have already received.

3. If you withdraw present divorce and file fresh a MCD you have to seek their side signature and statement recording that you have to see if they agree to it. Moreover if they donot want to do MCD as you say she getting married urgently then your already paid money is gone with a decree in hand which can always be opened as it is not as per procedures.

Rgds.

1 Like

Mohd Musabbir Ansari (Legal Practice/Litigation New Delhi 09582547570 )     31 July 2010

Dear Arun Kumar

your wondering on my advice is enevitable. You are just talking about suposition of her moving appeal against ex-party decree of Divorce. So there are just chances for appeal. It is not 100% sure that appeal would take place.

So far as MCD is concerned, suppose both parties get it from the Court, even then any party can challenge it on the ground of fraud, undue influence, force etc.

Therefore my little understanding force me to advice in such matter to continue previous filed divorce as she may challenge even MCD. Its all depend upon her.

Mohd Musabbir Ansari (Legal Practice/Litigation New Delhi 09582547570 )     31 July 2010

Dear Arun Kumar

With due respect I would like to share with you that definitely there is flood of false and fake cases of domestic violence interalia. But we cant ignore the fact of rapes, dowry death, teasing, bullying which has become rampant all over india. So we must not be one sided.

This world is full of good and bad people. I hope you understand what i want to communicate.

Thanks a lot and please do not take it otherwise.


(Guest)

Sh Anasari,

First ignore my direct comments made to posts I am still a baby and learning the court craft from respected ld. members so till then bear with me my transition.

Now my take to your 2 nd reply first (ha ha) : Yah I might have earned notority on one too many posts on being so brash but I stand by them and say I might have been misunderstood as not being polite writing wise. Well thank you for reminding me to improve in future and I leave here with assurance I will improve.


and now, my short reply to your 1st. post abv. is that my comments / advise to Author was purely based on his briefs and not generic what is happening and what happens in scoiety etc. etc.. I still feel that if both party have some Notory stuff (calling it as Agreement / MoU) and then advance payments of entire agreed amount then filing S. 125 CrPC knowing fully aware that she is giving simultaneously assurance that Divorce will be ex partied and parties two ld. Advocates supporting it does not make all these proper procedure wise Decree. This is all I actually meant in my rather long replies above and I donot try / wish to say things too directly in an respected forum bze this interactive forum is for lawyers interaction with general public and not the otherway around.  See I am showing signs of learning :-)


Rest even a marriage is fraud (generic saying) ha ha

Well thank you once again for sharing your insight on this topic post.

Rgds n nice weekend to ld. readers


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