Sumit 10 March 2018

Separate mcd appl. without withdrawing contested divorce

Dear Sir, I have filed contested divorce (cruelty grounds, section 13) 3 years back. After my divorce petition she filed sec24 and got maintenance amount per month for her. Then she filed CRPC 125 on behalf of my daughter. During petitioner evidence I filed my affidavit and few audio video recordings very favorable for my divorce case. After that my wife lawyer asked for mediation court. My lawyer said you can get MCD and save years, therefore I also gave my consent for mediation court. Then I goggled out the scenario and I fear this is a trap ( My wife having lawyers and judge relatives) . I fear my wife planning is to first give consent for MCD and if I withdraw my contested divorce then she will withdraw her consent for MCD before second motion.I read somewhere that in that case I have to again file fresh contested divorce with fresh grounds. My questions are:

(i)Is it mandatory to withdraw contested divorce before filing MCD joint first motion? Can we pursue Separate MCD application, without withdrawing contested divorce (collusion between parties issue)

(ii) If I withdraw contested divorce before filing MCD joint first motion and later if my wife withdraw her consent for MCD (or challenge MCD ,within 90 days of MCD decree on undue influence, pressure or fraud basis), can I revive my contested divorce my any mean?

(iii) If I am bound to file fresh contested divorce, then all my old blames (and related evidence) in old contested divorce will get (a) condone or (b) diluted (c) remain viable.

(iii) any other advice /suggestion to counter the situation.

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7 Replies

Vijay Raj Mahajan (Advocate) 11 March 2018

You will have to withdraw the contested divorce petition before filing for divorce by mutual consent. If in MCD consent withdrawn by wife you get good ground for fresh divorce case to file against her that will succeed. No appeal in case of MCD as clearly provided under the Family Court Act, so her appeal if filled will be dismissed in the High Court.

Sumit 12 March 2018

"iii) If I am bound to file fresh contested divorce, then all my old blames/grounds (and related evidence) in old contested divorce will get (a) condone or (b) diluted (c) remain viable "

Nobody can stop us writing old blames/grounds in fresh contested divorce case and nobody can stop my wife to Condon them in her written statement. Point is how judge will look at old blames/grounds (and related evidence) while passing final judgment for fresh contested divorce.

Vijay Raj Mahajan (Advocate) 13 March 2018

The facts mentioned in the original divorce petition were never proved in the court nor decided by the court about its validity henceforth those facts remain open and can be used in new divorce petition along with new facts of the matter.

Adv Radhika Mehta (Advocate) 13 March 2018

Firstly, you can put a clause in the Consent Terms of the MCD that you will withdraw the Divorce Petition filed by you after or on the same day as the disposal of the MCD.

Secondly, even if she withdraws her consent, the proceedings are there on record. Her conduct is there for all to see. So stop worrying about the possibilities and probabilities.

KISHAN DUTT KALASKAR (Advocate) 15 March 2018

Dear Sir/Madam,

Since your case is complicated case as such I require documents and same may be send to my email/PM (personal mail) for detailed legal advise.

With regards,

Legal Expert

sai narayana 20 March 2018

You can convert the existing contested divorce petition into MCD so that the six months waiting period will be waived of which will make you relieved of you from your said apprehensions completely. Search Google for suitable case laws for converting your present contested to new mutual divorce. All the best.