LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Mahhesh Kummar Aggrawal (Proprietor)     07 October 2011

Divorce on mutual consent

Hello Experts,

I got married on 27th Jan 2005. Due to lack of communication and understanding, we fought many times and that led to frequently arguing meaninglessly. So, we decided to go for divorce. Later on i talked to her and requested her to not to mingle the process any more, coz both of us were not satisfied with each other. May be she was not compatible with me and at the same time I was also not compatible with her. Our family elders set together and decided to file mutual consent under section 13 (B) with a compensation / what ever the term may be of Rs 10 lakhs is finalised. 

My querry is: what will be the procedure to file the case and mode of payment -comes under which section, etc.

Pls help me.



Learning

 16 Replies

Mahhesh Kummar Aggrawal (Proprietor)     07 October 2011

I forgot to mention that we don't have child.

ajay sethi (lawyer)     07 October 2011

if you have filed for divorce by mutual consent file consent terms in court mentioning terms of settlement arrived at . please mention that sum of Rs 10 lakhs shall b epaid in full and final settlement and that your wife shall not subsequently make any claim for maintenance , rights of reisdence etc .

1 Like

(Guest)

Spend some time in putting right terms in mutual consent terms - it will save headache down the line.

 

Ensure that it is full and final settlement and wife says that she renounces right of all  claims  in future

Mahhesh Kummar Aggrawal (Proprietor)     07 October 2011

Yah Mr. Sethi,

problem is that, at present my business is in a no loss-no profit stage & I don't hv a smart amount to contribute to this settlement, my parents too. All of my relatives came forward to help me out of this dilemma. So, i want to know the exact term is to be used in Petition which will be a legal term with defining the section that "under section so n so it is finalised that alimony amount of Rs so so will be given as compensation". As my in-laws are very dangerous coz many times they used to threaten us of section 498 (A)- to arrest all the family members including married sister with her husband though they are staying far away and we were staying separately from my parents 3 months after I got married, it is going to be 6 1/2 years of our staying together. To guard our family reputation and prestige of in-laws of my sister only my relatives and friends came forward. Otherwise, I was ready to face any legal consequences as I am faded up with all these acts and deeds of my in-laws. They interfere in every issues my personal family life, special my mother-in-law and her father means my Grand father-in law.

Please help me out. I want to get rid of scaring and stupid section 498(A).Bcoz it is a "Amogh Astra" for such family, those are using it as a earning source.  

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     07 October 2011

Jo Dar gaya wo Mar gaya.

 

What is 498-a? A Civil case after bail.

 

Anyways in Mutual Consent Divorce all terms are mutually decided and become part and parcel of the petition.

 

Get a smart lawyer to draft it and, though maintenance can be claimed later as well by wife, do get mentioned the alimony alongwith a line that this is for past, present and future alimony, maintenance and all claims of stridhan etc.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Hemanth Kumar (student)     08 October 2011

Hi,

Please consult a lawyer,  having good knowledge in family matters.  If you both agree you can make an MOU / agreement regarding payment of sum towards full and final settlement.

File for divorce on mutual consent.

Hope it will work.

with regards

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     08 October 2011

Dear mahesh

as you know that many of my Friends give their valuable suggesstion to you, you can filed a petition with best lawyer who have best knowledge of drafting the family matters and after that you can feel relax in rest of your life

Krish Narayan (Advocate)     10 October 2011

The following lines are important:-

1. Amount given as maintenace is towards full and final settlement of permanent alimony.

2. There is no past, present or future claim against each other.

3. She has no right, title, interest, possession, inheritance, succession or claim over the immovable properties and future earnigs of the husband.

4. The amount so received by her, forfeits all her claim against the husband.

5. She has not conceived through the husband on the date of separation 

6.  One should not disturb the other's future marital life.

1 Like

Mahhesh Kummar Aggrawal (Proprietor)     19 October 2011

Please suggest either it is correct format to appeal:

 

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

 

Most Respectfully Showeth:

1.    That a marriage was solemnised between the petitioner no. 1 and petitioner no. 2 at Dharamgarh on 27th January 2005 according to the Hindu rites and ceremonies. 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                                     Age      Place of Residence

            Before Marriage-    Hindu         21        At/Po/P.S. – Raja Khariar, Distt. - Nuapada (Odisha)

                                          Virgin

At the time of                                                             

            filing the petition   Hindu          28        At/Po/P.S. – Raja Khariar, Distt. - Nuapada (Odisha)

                                         Married

PETITIONER NO. 2/ HUSBAND

            Status                                     Age      Place of Residence

            Before Marriage-    Hindu         24        At/Po/P.S. – Dharamgarh, Kalahandi, (Odisha)

                                         Bachelor

At the time of                                                             

            filing the petition   Hindu          31        At/Po/P.S. – Lanjigarh, Distt. - Kalahandi (Odisha)

                                         Married

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.  That, the parties to the present petition lived together as husband and wife till 4th April 2010 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.    

5.    That, since there is no possibility of reconciliation between the parties, they have agreed to convert the petition filed by the petitioner no. 1 for dissolution of marriage to a petition by mutual consent for dissolution of their marriage under section 13-B (1) of the Hindu Marriage Act.

6.    That, no other case is pending in any court of law between the parties except than this present petition.

7.    That, the terms of settlement between the parties arrived at sum of Rs9, 11, 000/- (Rupees Nine Lakhs Eleven thousand) and shall be paid in the shape of draft infavour of Petitioner No.1 payable at S.B.I.Khariar.

8.    That, amount given as maintenance is towards full and final settlement of permanent alimony.There is no past, present or future claim against each other.

9.     That, Petitioner no. 1 has no right, title, interest, possession, inheritance, succession or claim over the immovable properties and future earnings of the husband. The amount so received by her, forfeits all her claim against petitioner no. 2.

10.    That, Petitioner no. 1 has not conceived through petitioner no. 2 on the date of separation. 

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

12.    That, as stated above, the above named parties are living separately since 4th April 2010 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.

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

13.  That, the present petition has not been filed in collusion of the parties.

14.  That, there is no ground as to why the relief prayed for cannot be granted to 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 marriage was solemnised and consummated at Lanjigarh between the parties and they also last resided together at 4th April 2010, hence, this Hon’ble Court has jurisdiction to entertain and try the present petition.

18.  That, the prescribed court fee has already been affixed on the petition.

19.  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.

20. 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.

 

Mahhesh Kummar Aggrawal (Proprietor)     19 October 2011

I want to know whether monetary terms of settlement comes under mutual consent or it will invite any complicacy in court.

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     20 October 2011

:-)

All terms of mutual consent divorce are setlled mutually.

 

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

kanwarjeetsingh (Adv)     20 October 2011

 


FOLLOWING MAY BE CHECK

 

That there is a no issue from the wedlock of parties

 

That the petitioners have mutually agreed that their marriage should be dissolved.

 

That the parties have mutually settled their disputes regarding all the stridhan, maintenance, permanent alimony and all other matters. The petitioner no (Husband) 2 shall pay a sum of Rs. _________/- only (rupees ______________ only) in two instalments, the first instalment of Rs. ______________/- only (rupees ___________ only) shall be paid by the petitioner no. 2 to the petitioner no(wife) 1 before the Hon’ble Court at the time of first motion and the remaining Rs. ---------/- only shall be paid by the petitioner no. 2 to the petitioner no. 1 at the time of second motion before this Hon’ble Court. 

(Dear

There is no definite statute that calls for a lumpsum payment“Maintenance is allowed under Section 125 of the Criminal Procedure Code and Section 18 of the Hindu Adoption and Maintenance Act. Since there is no rule for a one-time payment, it has to come from the general consensus of both parties).

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

 

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.

 

That both the petitioners have withdrawn all the allegations, if any, which were made against each other before any institution or court made by them and the petitioners further undertake to withdraw all petition, appeal, claim, suits against each other if pending.

 

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

 

Good luck

kanwarjeetsingh (Adv)     20 October 2011

 

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.

 

I think it can not be exceeded there is a ruling of Supreme Court on it  

kanwarjeetsingh (Adv)     20 October 2011

 

It is no wonder that the Supreme Court (Sushil Kumar Sharma Vs. Union of India Writ petition(C) no.141 of 2005) has condemned 498A as “Legal Terrorism”, though ruling 498A constitutional.

If do you think there is false allegations

Pursue section 182 against their false accusers.

 

Sections 182 and 211 of IPC provide punishment for making a wrong complaint and false charges of offence. Similarly Section 358 of Cr. P.C. deals with cases of groundless arrests.

 

The 498A wife may face arrest under Section 182. The sentence may be range up to 6 months and a fine or both.

 

The Supreme Court (Lallan Chaudhary & Ors Vs State of Bihar & Anr. DATE: 12/10/2006. BENCH: HK SEMA & P.K.BALASUBRAMANYAN) has held that the police must register a cognizable complaint. If you wondered why the case was registered, though the complaint was flimsy, this is the reason. But the law also says that upon investigation, if the complaint was proved to be false, then the officer can recommend criminal proceedings under section 182. Here is the excerpt: “Section 154 of the Code thus casts a statutory duty upon police officer to register the case, as disclosed in the complaint, and then to proceed with the investigation. The mandate of Section154 is manifestly clear that if officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information.”

 

The Delhi HC (Priya Gupta Vs The State. Date Of Decision: 20.04.2007. Hon'ble Justice Reva Khetrapal) has held that: “It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. Hon'ble judge also goes on to say that: "Indisputably, if as a result of the investigation, if it was subsequently found that the allegations made in the complaint could not be substantiated or were false, the investigating agency would have been at liberty to recommend initiation of criminal proceedings against the complainant in terms of Section 182 I.P.C."

 

Further

Get your lawyers to file complaints against the in-laws in the police station or a writ petition in the court for admitting to giving dowry. Giving dowry is also a crime. I am basing this on the same judgment by Justice Dhingra. If they admit to not giving you dowry under this pressure, then be assured you can nail them in a perjury case. Get a your lawyer to pursue this angle. If the police refuse to accept your complaint, get a court order for them to do so. Logic dictates that they will accept the complaint as they can extract bribes from the other side. This is one of the fastest ways to settle the case on your terms. 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query