Is this the right draft for mutual consent divorce petition


 UNDER SECTION 13-B (2) OF THE HINDU MARRIAGE ACT AS AMENDED UPTO DATE FOR DISSOLUTION OF MARRIAGE BY DECREE OF DIVORCE WITH MUTUAL CONSENT

In the District Court at Noida Suit No. …………… of 2013. In the matter of : (MY NAME) AND (MY HUSBAND NAME) Petition for a decree for dissolving marriage by mutual consent under section 13B of the Hindu Marriage Act, 1955.

The humble petition of the said (MY NAME)

RESPECTFULLY SHWETH:

1. That the parties to this present petition are both by religion and faith Hindus and they were married as per Hindu rites/customs at DELHI on 30/04/1998 and the said marriage is still existing. They are of age above 21 years.The affidavits of petitioners to this effect duly attested are attached.

2. That the status, age and place of residence of the parties to this petition before marriage and at the time of filing of the present petition were/are as follows:

- PETITIONER NO. 1/ WIFE      Status Before Marriage    Age       Place of Residence -

                                                                       Hindu Virgin       24      (MY FATHER ADDRESS DELHI)

                                              At the time of filing the petition

                                                              Hindu Married          28       (MY PRESENT ADDRESS NOIDA)

PETITIONER NO. 2/ HUSBAND   Status Before Marriage-   Age        Place of Residence

                                                                Hindu Bachelor     24             (MY INLAWS ADDRESS DELHI)

                                          At the time of filing the petition

                                                              Hindu Married         31             (MY INLAWS ADDRESS DELHI)

3. That the parties to the petition were Hindu by religion at the time of marriage and they continued to be so at the time of filing the present petition.

4. The parties ever since the marriage did not pull on together being of different tastes habits,, ideas, and bearing and so being completely different nature and temperament and could never adjust themselves till now and so had no love nor heart for each other and they are not going to reconcile between them in future.Both parties have irreconcilable differences hence leading to part from each others and so the petitioners have mutually agreed that their marriage should be dissolved.

5. That, the parties to the present petition lived together as husband and wife till 4th April 2011 and thereafter have been living separately on account of difference due to one reason or the other and there is no possibility of reconciliation between the parties.

6. That, as stated above, the above named parties are living separately since 4th April 2011 and there is no chance of living together or any other reconciliation between the parties and as such they have agreed for dissolution of their marriage of their own free will and consent

7. That the parties last lived/cohabited at (my present address NOIDA) within the jurisdiction of this court when petitioner (MY NAME) of own and out of free will/accord broke the matrimonial home and withdrew herself from the company of said (MY HUSBAND NAME) with all her personal belongings and since then she has been residing and living at (my present address NOIDA) and is undesired with any wish for uniting with her husband.

8. That except as hereunder stated there were no other proceedings between parties.

9. That the above petition is bona fide and not presented in collusion between the parties.

10. That there is every legal grounds in granting the relief.

11. That, now the parties herein realized the futility of carrying on this relationship merely on paper any more. Moreover they verily believe that staying as husband and wife under one roof is no more possible and the marriage between them has been irretrievably broken down and hence there is no chance of reconciliation.

12.That, parties herein have agreed that the marriage should be dissolved and in this regard no hasty decision has been taken. The parties herein have reached to the decision of mutual dissolution of marriage after sufficient forethought and enough contemplation. As the marriage between them has completely been broken down and any further continuation of the same would amount to prolonging their agony, The parties have mutually settled their disputes regarding all the stridhan, maintenance, permanent alimony and all other matters.and also have agreed on following terms and conditions

A. That petitioner no 1 will get and retain the present flat (MY PRESENT ADDRESS) and petitioner no 2 will have no right title intrest possession inheritance succession or claim over this property and future earning of the wife i.e. petitioner no 1. forfeits all his claim against petitioner no 1. towards full and final settlement .There is no past, present or future claim against each other.The flat mentioned above so received by petitioner no 1, forfeits all her claim against the husband.and is towards full and final settlement of permanent alimony.

B. that the petitioner no 1 will get and retain the bank accounts which are in joint names and will be sole holder of the amounts lying in those accounts

C. That the petitioner no 1 will get and retain all the household goods and furnishings and petitioner no 2 will have no right or entitlement in those goods and furnishings

D. That the petitioner no 1 will get and retain all the insurance policies and will liable to pay all future premiums of these policies. The petitioner no 2 will have no right or entitlement to these insurance policies

E. That, Petitioner no. 1 has two kids from marriage with petitioner no. 2 on the date of separation.and will keep holding the custody of her kids but kids and husband are free to meet, live and go for vaccations whenever they wish

 F. that both parties will get and retaim their respective single bank accounts and no one will be entitled to make any type of claim against these bank accounts 

G. That, Petitioner no. 1 has no right, title, interest, possession, inheritance, succession or claim over the immovable properties and future earnings of the husband. and forfeits all her claim against petitioner no. 2 towards full and final settlement .There is no past, present or future claim against each other 

H.That both the petitioner nos. 1 and 2 will not claim any type of maintenance or any right upon the property of each other or in-laws in future. 

I. That, either should not disturb the other's future marital life.

 J. That both the petitioner nos. 1 and 2 will not claim any type of maintenance or any right upon the property of each other or in-laws in future. 

K. that petitioner no 1 will not be entitled to any Maintenance from petitioner no 2 as she is a working lady and earns good salary

 L. that petitioner no 2 will not be entitled to claim any Maintenance from petitioner no 1 and will earn for himself 

M.That both the petitioner nos. 1 and 2 undertake not to file any civil or criminal case including maintenance proceedings against each other. 

N. that these conditions are towards full and final settlement of permanent alimony.There is no past, present or future claim against each other.and none of the both parties will subsequently make any claim for maintenance , rights of reisdence etc . 

13. The consent has not been given by either party by fear, force, fraud, coercion or undue influence

14. That there is no previous proceeding with regard to the marriage of the parties.

15. That, there is no improper or unreasonable delay in filing the present petition.

16. That, as prayed in application filed under section 151 CPC the period of six months for moving second motion under section 13-B (2) of the Hindu Marriage Act may be waived off condoned in the circumstances of the case.

17. That, the prescribed court fee has already been affixed on the petition Your petitioners hence pray for a Decree of dissolution of marriage by mutual consent under section 13B of the Hindu Marriage Act 1955 and also and other Orders be made as to this Learned Court may deem proper and fit. And your petitioners as in duty bound shall ever pray Verification I, (MY NAME) wife of ............ daughter of ……, aged about………… years by occupation service residing at (MY PRESENT ADDRESS NOIDA) do hereby solemnly affirm and say as follows: I am the petitioner No. 1 above-named. I know and I have made myself acquainted with the facts and circumstances of this case. The statements in paragraphs 1 to 6 of the petition hereinabove are true to my knowledge and belief. I sign this verification on this ………… day of…………… at the Court House at……………. Signature of Y I, (MY HUSBAND NAME) son of…………… aged about………… years residing at ( my inlaw address DELHI ) do hereby solemnly affirm and say as follows: I am the petitioner No. 2 above-named and I know and I have made myself acquainted with the facts and circumstances of this case. The statements in paragraphs 1 to 6 are true to my knowledge and belief. I sign this verification on this ………… day of…………… at the Court House at …………………… Signature of X Verification 

 
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Advocate

take help of local awyer.


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Advocate

Yes the draft is absolutely correct....The power of waiving 6 months time period is only with Supreme Court hence para 16 need to be rectified....

 
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Advocate & Regd. Patent Attorney

No not at all.

1. Mention about child maintenance, raising kids needs lots of funds.

2. Donot waive right to property for kids, they have all the right over it including ancestral.

3. Visitations must be clear. Weekly, bi weekly, timings, who will pick up and drop them.

4. Vacations must be identified, divide them among 2, prior information of outings must be informed, no clash in planning.

5. Remarriage, whether kids can be adopted by new father, if yes, no consent required, if not what is the next alternative.

6. Foreign assignment during work, if on cards, then whether kids can travel with mother, if yes, he has to consent for visa, if not what alternative.

take care of all these aspects and then finalise.

Vandana Vaidya.

Advocate.

legal.vandana@gmail.com


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Advocate

i am totally agree with you Adv Vandana but the thing is they don't have any kids. The points you mentioned in your reply are only applicable where the couple have kids out of their wedlock. but here the situation is different. Every case is different hence every case has different drafts of petition...


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Posted by: Nitish Banka  Categories: Civil Law Family Law 
 

 

Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by DesertioncrueltyAdultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

Image result for mutual consent divorce

Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

9891549997

 

 
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