eswar (software) 25 March 2011

Divorce and Mediation

I had filed a divorce case against my wife on the grounds of cruelty and desertion; Notice is served and the case will be referred to mediation soon.

If the mediation is successful and mediation agreement (terms and conditions) will be prepared by Bangalore Mediation Center and passed to family court

what is the procedure after that

a) My lawyer says that the one time settlement amount needs to be paid at the the time of reporting the settement in the open court. what is the right time to pay the alimony amount ?

b) Under what section will the judge pass the divorce decree after reporting the settement ?

c) Will we have to wait for 6 months (since both have agreed to take divorce - will my divorce petition be converted to mutual consent ?)

or the judge based on the mediation agreement immediately pass a divorce decree ?

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3 Replies

Tajobsindia (Senior Partner ) 25 March 2011

@ Author

1. My lawyer says that the one time settlement amount needs to be paid at the time of reporting the settlement in the open court.
Suggestion: It is always better to meet agreed settlement payments in two installments. One at the time of recording of First Motion Statement and full and final at the time of recording of Second Motion Statement and only after withdrawal of all other civil / criminal cases (if any). Least to least a DD of balance full and final settlement amount can be deposited with court during First Motion with instruction to withdraw the same only at the time of recording Second Motion Statement and after withdrawal of all other civil / criminal cases (if any). This is the safest method if one party assumes some possible mischief before Decree in Mutual Consent Divorce happening.

2. What is the right time to pay the alimony amount?
Suggestion: See above.

3. Under what Section will the judge pass the divorce decree after reporting the settlements?
Suggestion: Under S. 13 B (2) of Hindu Marriage Act (if this is a case of Hindu Marriage Act.

4. Will we have to wait for 6 months (since both have agreed to take divorce - will my divorce petition be converted to mutual consent?)
Suggestion: A joint application is moved by parties with facts and will to convert Divorce suit into Mutual Consent Divorce Petition.

5. Or the judge based on the mediation agreement immediately pass a divorce decree?

Suggestion: Based on mediation agreement of parties the mediation file with statement of parties to amicable settle issues via Mutual Consent Divorce is sent back to Court. There follow para 4 suggestion followed by para 1 suggestion.

eswar (software) 26 March 2011

Sir - thanks for the detailed reply

If I go with option of deposting the DD in the court, whose name the DD has to be taken ? If the DD is taken in my wife's - Will the court keep the DD in it's custoday ?

Tajobsindia (Senior Partner ) 26 March 2011

@ Author

1. The DD is made in wife's name.

2. The terms of mutual agreement should be drafted in such a way that half payment at first motion and deposit of balance half by way of DD in wife's name which is deposited before Court at first motion statement which is to be released at the time of second statement when decree is being made in Mutual Consent Divorce.

It is a suggestion and if you are 100% sure that later (means at the time of second motion) after taking full and final agreed payment she will not back out then no need to make two payments as earlier advised. But in Mutual Consent divorce with only one case and / or other cases pending it is always a good suggestion to split the agreed payment into two and follow the suggestions given earlier and above para 1 and 2 as you want her to come and make second statement and not run away with full and final payment then you will be struck for eternity.