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Just Passed LLB (Trainee)     30 April 2013

Divorce with mutual consent

 

Divorce with mutual consent

Dear Advocates Fellows,

A Husband 29years from pune & wife aged 25years from Pimpalgaon(baswant)Nasik.

It was same cast Arranged marriage on 9/12/12 at Pimpalgaon nasik, got the marriage certificate of gram panchayat, from Pimpalgaon(baswant) Nasik.

(I suppose Court relevant is nifad taluka court,Dist NASIK, Maharashtra).

From 27/02/13 wife left spouse due to family clashes

(wife is arrogant & not suitable to family expectations of my client)

Finally wifes family supported her conduct  & now 

both the parties mutully decided to take divorce on 28/04/13 orally.

 

1.One of the advocate from their side 

says we will give false declartion that marriage occured on 9/12/2011 not 2012

& ask for Divorce by mutual consent at nifad court.

Husband is  professinally qualified CS & CWA, 

Falsifing or suppressing facts that marriage is occured in 2011 can hamper professional career in long run,

So as clients advocate i am not accepting the praposal of falsifying.

as the law says We are elligible to apply for divorce only after 1 year from marriage.

But both the parties want the legal divorce at earliest  

Shall i go for false declaration?

What is risk of fasifying to my client in his CWA & CS practice  ?

2. The relevant court is niphad is questinable ?

 

2.1.can i appeal in family court of pune for divorce?

As Clients residence is at Pune

2.2.comparatively (Pune or Niphad) where you think

the decree will be processed faster if both places are valid to apply for divorce?

 

3.What will be reasonable quote of Advocate fees this matter in toatal at Pune Court ?



 5 Replies

Adv k . mahesh (advocate)     30 April 2013

you are very hurry to get barred from the bar council 

if you file you have to show the relevant documents and again another illegal act so 

1. let them be separated for one year and take a mutual consent from them and let them stay separately 

2. in future if any thing goes wrong then your client will be troubled with his professional carrier also 

3. after one year file mutual divorce and here i am giving the detailed explanation for mutual divorce how to take 

Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage.

A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months the court passes a divorce decree. Incase one of the sides withdraws his/her petition the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment.

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is initiated by filing a petition, supported by affidavits from both partners, in the district court. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners, that due to their irreconciliable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent, are custody of child, alimony to wife, return of dowry items or “streedhan” and litigation expenses.


(Guest)

Is it mandatory to appear in the court for first motion in MCD? We have filed MCD but neither of us attended the court for first motion. The affidavits and petition were signed by us and accordingly filed in the court by our lawyers, a case number and date was given to us by them.

Is this normal procedure?

Rajendra K Goyal (Advocate)     30 April 2013

I agree with the guidance / views of K. Mahesh.

R K........ (Analyst)     30 April 2013

How much fee did u pay to your lawyer ?

Please tell me as i have to file petition of 13B and different lawyers are quoting me differnt fee, starting from 4K to 20K for both the motions ?

Pradeep Kumar (Lawyer)     09 March 2016

Dear Sir,

Never give any false declaration in the court. It is right that you cannot take divorce as it is barred under the provision of section 14 of the Hindu marriage act but it does not mean that you cannot make an application for divorce. You can always make an application for waiving of one year and present divorce petition accordingly.You have to mention the extreme hardship and justified reason to waive off the period of one year. In case district judge of family Court does not allow, you have a right to approach High Court as well as Supreme Court.

Advocate Pradeep from Gurgaon 9871765000

 


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