1. Your first brief does not tally with last one at all.
2. If there is no Order in Appeal from a superior Court how one can convert already decreed case into that of mutual consent and again seek decree and that also removing one reason out of the two based on which earlier decree sheet made by trail Court?
Under the Appeal a superior Court should explicitly mention 'stay' or give finding of ‘set aside’ then only thoughts of mutual consent creeps up but I am not able to understand how in your last reply that is happening as private offer from husband side? You need to share little more if you feel like in open forum to understand your questions in better light.
3. Also if the accommodation was in wife’s name (say) then husband cannot live in wife’s allotted government accommodation as ‘rights’ and several Court decisions are there to such effect. If it (accommodation) was not so (means it was in husbands name) and wife did not live in it then the finding itself speaks how case got decreed and I need not have to add anything more to it.
However, I have a persuasive thought seeing your medical condition than ignoring needs for roof to be straight forward here, that is hope should not be lost of a patient ex wife, you can plead for issuing directions to trial Court to re-look alimony rights based on pecuniary grave medical conditions (omitting from pleadings needs for flat – installments blah blah).
I feel if plead well at Hon’ble HC you may have chance to get alimony inspite of trial Court decreeing suit on ‘desertion’ as well as on ‘mental cruelty’ grounds for a persuasive reason I will tell those here; law says after passing decree one should wait for its Appeal period before re-marriage which is a very strong ground herein to get admission of your appeal ( I’m assuming that is how Appeal got admitted). Now since such check and balances in Law is there husband is worried about his immediate re-marriage status which he did immediately withotu waiting for appeal period limitation and he feels shaky may be superior Court may 'set aside' trial Court decree or in leave send case for afresh view back to trial Court and further r/w that he has got divorce + remarried but still some CAW case pending as you inform us in your second reply so such divorce – remarriage are still not peaceful ending to him!
That may be the reason he is offering MCD but I still donot understand how that may happen without a superior Court giving any finding?
Coming back to alimony persuasive pleadings when such faulty offers (for MCD - remove one grounds and retain another in decree) from husbands side is in air I recall several cases from Hon’ble SC where in a null and void - meaning non-existent in eye of law or non est marriages, ex-wife have been granted alimony to which everyone will say in a null and void marriage where the marriage itself never existed how alimony can be given similar to what @ Archana sais I do agree to her that in a desertion finding no alimony to wife, but the reasoning given for allowing alimony by Hon’ble SC in null and void cases are; it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent for such and such reasons (here your reason is terminal illness which is not alien to what Hon'ble SC even says); it is with the purpose of not rendering a financially dependent spouse destitute that S. 25 HMA (alimony) enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship etc. etc.
Coming back to yoru two briefs; I see here is a case most probably or for sure during and or even prior to litigation start your cancer (medical status) was known to husband and without getting into controversies how a trial Court arrived at desertion – mental cruelties grounds my limited persuasion point here for your favour is OK now you refer to a decree in hand but I am for god sake ‘cancer patient’ no doubt I am earning but does this superior Court may come to an opinion that a ‘deserted – mental cruelty’ proved by trail Court ex wife should be left hanging dry in society and do I deserve such in-humane treatment that my ex-husband does not even wait for appeal period and gets himself a healthy wife before one month of passing of decree of trial Court?
This is I feel start of sound persuasive statement, feel free to tweak same in consultation with your advocate at superior Court and plead accordingly and I am hopeful HC will definitely look into a particular Article of COI and grant some relief in your favour pertaining to ‘alimony’ provided your side speak – stress of your terminal illness and not flat purchase.
All the best.
