What happens if on the second date of hearing of MCD petition, either of the spouses do not consent for the divorce. What is the option available to the judge? What is the position if there is no exchange of financial benefits and if there is exchange of financial benefits?
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. For parties to seek divorce by mutual consent, they must be living separately for a period of atleast one year, and must resolve towards the end of the marriage. They must not be performing marital obligations – physical separation is not a criteria. The marriage must be beyond reconciliation, and presenting a petition for divorce together does not indicate amicability. Consent, however, must be free. If after 6 months the petition is not withdrawn, the parties may move the court within 18 months, after which the Court may grant the divorce.
Mrs. Bakshi, u gave the conditions for filing a MCD and the things to follow. But my query was what happens if one of the parties is not willing for divorce, states the same to judge and files withdrawal petition? When would the main petition be dismissed?
If either spouse withholds consent, divorce cannot be granted under 13b. Financial settlement is matter of mutual agreement between parties. Under 13B judge doesn't interfere with whatever terms are agreed between couple. Only job of judge is to take on record the terms you have reached and verify consent of both parties under free will (absent of any coercion) after 6 month cooling period.
The MCD case can be extended up to 18 months from the date of its first filling in the Family Court, so if on the next date if one of party not ready for divorce yet, another date can be given and case thus can be extended up to 18 months period, after that if still there is no agreement for divorce between both parties, the petition for divorce will be dismissed by the Family Court.
As far the amount paid as settlement amount for divorce by mutual consent may be refunded back to the husband if the wife doesn't claim it as her maintenance amount for the period of separation.
If either of spouse withdraw consent divorce can't be granted under 13 b. Judge under 13b dnt interfere in financial or consent matter. if there is no exchange of financial benefits then its good for husband side because they have no financial loss if there is exchange of financial then husband may have to bear financial loss. Financial loss or benefit depends upon the terms of settlement