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Sufferer (PM)     20 September 2010

HMA Sec 13B ( 2 )

Dear Experts,

A joint petition was filed under Mutual Consent Divorce Section 13B, in district court. The first motion was in March 2010 and both were present. The date of second motion was set in September.

The wife left india in august but before leaving she made an application in the court to prepone the date of the second motion , the date was preponed in july however the Hon Judge did not consider it and said that he will do whatever he has to on the actual date of the second motion. 

On the actual date as the wife was not present, the court has given one more date after 2 months and asked her lawyer to instruct the wife to be present. 

 If she comes then it is fine. If she does not then what should be done. The wife is not in a hurry for the divorce.

What options does the husband has now ?



Learning

 12 Replies

Jamai Of Law (propra)     20 September 2010

Even you could have created such a situation with your wife.

 

It was you and your lawer who should have perceived this likely scenario. 

 

you shud have asked for her passport and shud have given your passport at the time of 1st motion to prevent such a scenario.

 

The moment you file MCD, it becomes an 'ethical' binding and obligation on both of you to take out six months time for the subsequent hearing date.

Adv Archana Deshmukh (Practicing Advocate)     20 September 2010

The second motion should be made after 6m but within 18m from the date of presentation of the petition. So, the  second motion can be made at any time till the expiry of 18m period. Try to convince her to come and complete the last formality.

Jamai Of Law (propra)     20 September 2010

Ld. Adv Archanaji is correct.

You need to convince her.

Your statement 'The wife is not in a hurry for the divorce' describes everything.

 

Adv Archana Deshmukh (Practicing Advocate)     20 September 2010

@ sufferrer

Please don't use such psudos like "sufferrer". You may have sufferred . Life might have given you some sufferrings but having a negative outlook will cause more sufferrings . Try to cultivate a positive attitude so that you look at your problems clearly and solve your them in a better manner. Do not indulge in self pity, it will just sap away your confidence.  If one has a positive optimistic attitude in life then things will definately change and improve.

1 Like

Adv Archana Deshmukh (Practicing Advocate)     20 September 2010

I did not intend to hurt. pl don't take my comments otherwise. I saw the negative pessimistic attitude so I just said it...

Sufferer (PM)     20 September 2010

Dear Archanaji, 

No offence, I think that i should have been clear while taking up this id. Well to clear some air, by sufferer I meant " Sufferer in the hands of law " And I appreciate your advice. Thanks for that. Now coming back to the discussion,  Yes i will try to convince her. The reason i am seeking the advice of all the learned lawyers here is that what if she does not turn up on the date. What other options I have.

There is an amendment to Section 13 B (2), in which it has been proposed to do away with the second option. But it is still with the rajya sabha and will take maybe a month or 2 more. Do you think the case will benefit from this amendment when it becomes the law.

Any other suggestion , or judgement which has been done previously in similar case like this.

 

 

 

Jamai Of Law (propra)     20 September 2010

Dear Sufferer,

I have sympathy for you for your emotional outburst that ' Sufferer at the hands of the law'.

But I must say that in MCD it is known to both parties that thy have to come back to reassert their mutual agreement about divorce. 

Can the law disallow any person to reconsider his/her decision? NOOOOOOOO

mandatory provisions of 2nd motion  will never be done away.

At the max you can pray to condone the delay beyond 18 months. if if it can be shortened less than 6 months based on circumstnaces, it can be extended beyond 18 months also on merits of the case.

But both have to be present for that also.

What if your wife comes back in time but declines for divorce and unilaterally withdraws the petition??? Then you both are back to sqare one.

Intension of 13B(2) is to ensure explicit reassertion of motion1 and not implicit inference in any circumstances, the hon. court is liable and responsible to ensure that.

It is logical to infer it as negative to divorce if either party remains absent, b'cos it is known to both parties right at the time of filing 1st motion.

The  amendment bill has bleak chances of getting passed and it would take years to even debate in both houses.

 

Sufferer (PM)     21 September 2010

Will POA  under Diplomats and Consular (Oaths and Fees) Act 3(2) help me ?

Jamai Of Law (propra)     21 September 2010

YES. POA is an option.

 

You may try to convince your wife that comming to india wud more time consuming and costly than arranging for the POA in front of recongnised authority (consular mission of india there) to a person  'for the purpose of represnting in the court to give consent for MCD'

 

One Q leads to another. What if POA person doesn't attend? Best way is to have her POA in your name or in the name of your relative whom you trust and she also trusts.

 

In exchange, you also need to give such your POA in her name or her relative.

CommonMann (Software Professional)     21 September 2010

@ Archana Ji,

I appreciate your positive comments. I am into the same scenario. I have my 2nd motion in october 2010. Just want to know if she doesnot appears in court and I don't want to case to be linger on for 18 months, Can I file separate divorce petition under HMA 13 on the basis of cruelty, cheating, since she filed 498a and also she has taken a hefty amount in the form of DD from me which is mentioned in MCD petition. All the criminal cases like 498a, 323, 406, 506, 34 are closed against me and my family members bcoz of settlement. If at all I need to file adivorce petition how much time it will take again, since I filed a divorce petition 2 years back and bcoz of MCD petition, I have withdrawn that petition. OR do i need to reopen the same. Please suggest. Thanks.

Sufferer (PM)     21 September 2010

Dear Jamai Sir,

See now there is slight ray of hope !! Discussion helps. Thanks to the forum.

Can you help me with some previous judgements  and also with the format of such a POA.

Yes , I will make sure that the person to whom she gives the POA attends the court.

Thanks.

 

 

Adv Archana Deshmukh (Practicing Advocate)     21 September 2010

 

@ Charanpreet Hora,

You cannot reopen the earlier withdrawn case.  When the MCD is going on you also cannot file another divorce case. Only if the MCD is closed / withdrawn then you can file a fresh petition on any ground available to you. 

Instead of "if she does not appears in court" type of thinking, it will be better if you be in touch with her before the date of second motion and talk to her about it, so that she'll come without fail. If she is unable to attend the court due to some reason on that date then, take a short date of her conviniance after discussing with your lawyer. Second motion can be moved at any time before the expiry of 18m from the date of presentation of the petition, that means you've 12m in your hands.


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