Frustrated with Justice (Student) 04 December 2013

Convert / withdraw contested petition for mutual consent pet

I am the petitioner in a contested divorce petition under HMA, fighting for many years. Now, there is a chance of settlement via mutual consent divorce (MCD).

What is the safe and legally possible way to ensure that the original petition can be revived in case the respondent withdraws consent before second motion?

We have received differing opinions from different lawyers. So please answer with precedent case reference if possible.

All the below solutions to this issue have some problems:

1) Ask judge to adjourn the contested case sine die. When MCD decree is granted the contested petition will stand withdrawn. ---- But some lawyers have advised us that judges usually do not grant adjournment sine die.

Is there any legal provision for adjournment sine die or is it purely at judge's liberty?

2) Convert the contested petition to MCD. --- Here also, lawyers have advised that it is not easy to revive. Is there any precedent case post 2010 in which a converted petition has been revived? What and how long is the procedure?

3) Conditionally withdraw the contested petition and file fresh petition for MCD. --- Under what section of CPC, can one file for conditional withdrawal? Is there any precedent case where conditionally withdrawn petition was revived? Or even a precedent where conditional withdrawal has been filed?

Is conditional withdrawal also subject to judge's liberty or is there a legal provision (CPC section) for the same?

Thanks,

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4 Replies

T. Kalaiselvan, Advocate (Advocate) 04 December 2013

Your matter is not so complicated as you apprehend. If your wife has agreed to divorce, it is better that she instead of contesting the case, files a memo stating that she submits to the decree as prayed for by the petitioner, and she may incorporate the conditions upon which such an arrangement was made. On the basis of the said memo, the case will be decided and you will get divorce easily without going for a MCD or any other thing. Alternately, the case may be referred to Lok Adalat, where the case will be decided on the same basis.

Frustrated with Justice (Student) 05 December 2013

@ Adv Kalaiselvan,

Can you inform under which section of HMA the divorce will then be granted? Other lawyers have informed me that this is not like financial or property cases where a settlement is enough to issue the decree.

Respondent will have to admit fault in her 'memo' for me to get a decree in the contested divorce case. The respondent will not agree to this. So then only MCD option remains.

Can you provide any precedent case for what you are suggesting i.e. without respondent admitting fault, and without MCD, the decree is granted on the basis of settlement??

Does Lok Adalat have legal right to grant divorce and issue divorce decree? We are already going to mediation cell for settlement.

Thanks,

gd dy (gd dy) 05 December 2013

first of all frm posting it is not cleared whether petitioner is wife or husband.
in petition there is a genl. tradition to allege falsely and demand if it is frm wife.

one who is familiar with law r generally used this type of words.

by the way inspite of no. of years has been passed [according to ur posting], ur case is STILL in MEDIATION stage. !!!!! hw it is so ?

Rajesh Kumar (studient) 22 January 2016

sir, What is this Property issue related judgement shows Contested Decreed with costs ? no one attend from defendent side. arguments went ex-parte also. is it possible to set a side/revision/appeal ?