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localt (Engineer)     28 November 2010

Mutual consent Divorce-6 months

Hi everybody,

Me and my wife have petitioned for mutual consent divorce through a single lawyer( both petitioners and no respondent). We have been married for three and half years as Hindus but living seperately for one and half years. All issues between us have been settled  out of court. We both are employed and no maintenance issue arises. During the first hearding,the judge has ordered counselling session for both in few weeks and said that it will take 6 months to get divorce decree and there have been recent changes under 13B which will not grant divorce before 6 months ? Any comments...

My question is can I appeal so that divorce can be granted earlier as I heard that many cases have been awarded before 6 months.

Thank you All.

 

 



Learning

 17 Replies

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     28 November 2010

NO EARLY DIVORCE IS POSSIBLE, YOU HAVE TO WAIT FOR 6 MONTHS. EVEN AFTER 6 MONTHS ALSO THE FAMILY COURT SHALL BE SATISFIED WITH BOTH OF YOUR MUTUAL CONSENT FACTS/GROUNDS .

Roshni B.. (For justice and dignity)     03 April 2011

@ localt

 

my mutual divorce has happened in district court before the 6 months waiting period,that also thru power of attorney.

 

so there was no counselling order by the judge,in 1st and 2nd motion since my husband was not present in any hearing.

 

so u may check  wid ur lawyer.

 

Tajobsindia (Senior Partner )     04 April 2011

 

 

Originally posted by :Roshni B..

"

my mutual divorce has happened in district court before the 6 months waiting period, that also thru power of attorney.

so there was no counseling order by the judge, in 1st and 2nd motion since my husband was not present in any hearing.

so u may check  wid
ur lawyer.

"

 @ Roshni

There is nothing to check after Anil Kumar Jain Vs. Maya Jain Hon’ble SC ruling and still after recent IrBM punga which I participated before recently held Rajya Sabha call for public discussion on its merits and demerits and in these two discussions you actively participated here in LCI forums if my one leg is still in tomb and other dangling outside as Bhartiya No. 1 says quite openly and it is rightly said old flames dies hard hence madam ji it will be futile exercise for this author to be mis-guided by you a respected writer here to check speedy divorce more so under MCD in todays time with his ld. Advocate based on your DHC saga !


For refreshing your memory I suggest you read thoroughly SC Authority on MCD in link https://courtnic.nic.in/supremecourt/temp/dc%201436107p.txt 



If still not convinced by my advise then wait less than 24 Hrs. I will post here another link of Hon’ble SC with full text recent Judgment on MCD where two Lordships bench have remanded back cases seeking MCD Under Art. 142 COI to Hon'ble Chief (CJI) to set up a much larger Bench on Art. 142 COI matters seeking clarity on which all cases under MCD could be touched by Art. 142 reliefs ! This last sentence may be an eye opener for you as it is a mint fresh judicial activism news !

Avnish Kaur (Consultant)     04 April 2011

HAVE TWO separate LAWYERS AT SECOND MOTION

Roshni B.. (For justice and dignity)     04 April 2011

@tajobs

 

I am not misguiding this author.

 

Justice Altamas Kabir was the judge in my case also and had referred my case back in district court for mutual divorce.he also said that we have to wait for 6 months and only my husband will appear for MCD.it cant be dun thru POA.

 

After that,when my matter went to district court for mutual divorce,my husband's side who were in a hurry to get divorce,got the 6 month period waived off,helped by the mediator.maybe she knew the laws better.so she got the 6 month period waived off along with divorce thru POA in march 2011.she only prepared the MCD petition.

 

So I was telling the author that he may also ask his lawyer if this can be done.i am not intending to mislead him.i am saying so,because if our mediator could get this dun,so cud his lawyer also.

 

i am not too aware of these intricate laws.so i cant comment much,except sharing my experience,if it helps the author.

 

thanks..


(Guest)

Recently our local court judge said  to one party that he cant waive  6 month period ,wait for 6 months as per supreme court decision in 2010. Sadly I dont have this judgement.

But whats the latest decision said that i what to know.

@Tajobsindia

Very  funny taji. You said,my one leg is still in tomb and other dangling outside as Bhartiya No. 1 says quite openly and it is rightly said old flames dies hard hence madam ji


(Guest)

Generally precedent ( supreme court decision) are binding to lower court but not a mandatory requirement.Thats why there is a conflict between decision and create a confusion.

Judge can waive this period as having discretionary power of the court.

Tajobsindia (Senior Partner )     04 April 2011

Originally posted by :Kushan Vyas
"
adly I dont have this judgement.
Re.: https://courtnic.nic.in/supremecourt/temp/dc%201436107p.txt 

@Tajobsindia

Very  funny taji. You said,my one leg is still in tomb and other dangling outside as Bhartiya No. 1 says quite openly and it is rightly said old flames dies hard hence madam ji
P.S.: Sometimes my public jokes are like Newtons Third Law of Motion, so never mind take it I am bad in cutting jokes publically :-|
"

Tajobsindia (Senior Partner )     04 April 2011

@ Roshni

In your times before same Lordship (SC) Art. 142 COI was rarely used in deciding family matters of similar nature and infact just after your case i.e. few months later he himself used Art. 142 COI and current status is that just in past two months another Lordship (SC) has sent few family law files to Chief Justice for clarity on using Art. 142 COI and all these besides the point I personally feel your case is quite unique and it is other matter that we both fought over petty public debates here and could never understood each other. This last sentence is what I feel being humane first but then what has happened in your case has been a history and yes looking back reading your off and on postings related to your past case I shall say it can still be opened up ! But then it all depends on you if you wish to do so. That is also the reason I keep saying to you to march ahead on fresh note in life………..


@ Kushan

NO, all ld. Judges after above Anil Kumar Jain ruling except Uttarakhand HC have stopped waiving MCD's cooling period. Uttarakhand HC was one exception who behaved above Hon'ble SC which I feel is bad in eyes of Law. There is legal maxim ratio deserendi which is holding of a case and not precedents as generally felt by ld. professionals and said in suggestive talks; wish you may go deep into this subject to understand the same and apply in real case scenarios during practice before Bench.  Ld. Prabhakar some months back gave a good summery on same topic for general consumption and I subscribe the same.

Roshni B.. (For justice and dignity)     04 April 2011

@ Tajobs I don't know what you mean by "In your times" Justice Altamas Kabir had told us specifically(orally only) in July 2010 that we cant waive off 6 months period and that POA won't be allowed by my father inlaw to get a divorce for his son.Only husband has to come here.At that time,even the 1st motion was not filed. My inlaws,relaxed,that all cases have been quashed went for a 3 month holiday to my husband abroad,instead of filing first motion,to start with. Then it was filed in February 2011 in Delhi district court,and the judge told us that we'll get a divorce in March,which we got just 25 days back,through POA.Hence my father inlaw signed in place of my husband. Who's opening or closing my cases tajobs?When cases were open,i encountered spinesless lawyer who did not stand up for me during mediation. when i went to this 2nd lawyer as i did not agree to this forced agreement,he took 90,000 bucks from me,but did not say a word in court against the mediator who pressurised me so much.rather he has added her in his FB profile too.So,in SC i cud not tell the judges that she is the one who pressurised me,as i had no support of any1.this is another reason why this woman kept coming to the court even after settlement was dun long back in 2009.(her role shud have been over after this settlement,but NO!) after all these dramas,who'll be interested in opening or closing cases.i have no faith in judiciary.if i was in USA and such things had happened,i wud have fought back. matrimonial laws only favour women who have money and approach of gud,honest and aggressive lawyers;not women like me.. Regards, Roshni

hema (law officer)     04 April 2011

@localt

The judge has properly advised.  In the present prevailing law,  six months period in mcd cannot be waived off.

@Roshni

Not only this, several of your posts I read and appreciate. Except in one or two areas, where I have got different opinion, in other areas I agree with you.

You raised your problem on several occasions, and I tried to understand it but could not.

I consent with the advice given by tajobsindia.  Once Maya Jain case came into operation, now high courts and lower courts have lost the power to waive off the 6 month period.  Your SC judgment came earlier to that SC judgment, but that is not the point.

What is your exact grievance in respect of mcd?  You wanted it or you did not want it? 

If you wanted it, then the issue of it was granted within 6 months period in violation of SC direction, does not matter.  It also does not matter that mediator manipulated in the mediation.  It also does not matter the trial court/Family court, under the influence of mediator granted divorce.  It also does not matter that your socalled spineless advocate did not put appearance or could not represent your properly.   It also does not matter, that on the basis of power of attorney, you were granted divorce.  As you wanted divorce, you got it.

If you did not want divorce, then every thing was wrong.  Then it matters that why 6 months period was waived off in violation of SC direction. But, if, in the mediation, you were manipulated, you could have yourself raised this matter of " manipulation in mediation" before the trial court, which would have refused to grant divorce.  You could reopen the case successfully as suggested by tajobsindia, only if you filed some application either before the mediation or trial court explaining how you were manipulated in the divorce proceedings.

If you say that MCD decree is bad in law as adequate compensation was not paid to you, I think it is not permissible in law.

If you say that you could not recover your entire stri dhan and that is why the divorce decree is bad, then also such argument cannot stand in the court.  But the proper course of action is to follow the procedure laid down in law to recover stridhan.

If I said any thing which would hurt you, I am really sorry.  I say again, I appreciate your efforts to enrich this family forum.   

Warm regards

1 Like

(Guest)

 

 

@Tajobsindia

 

The principle or principles of law on which the court reaches its decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. It is said to be the statement of law applied to the material facts. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of precedent.

 

Ratio Decidendi means ...the reason for the decision.... this is when the judge explains why he sets the precident and is binding to the parties concerned and future cases.

 

Ratio decidendi is the legal principle behind the decision. taken account of all the facts. the ruling becomes the set precedent in case law and binds future cases.

What i said wrong?I said,"Only the ratio of a case is binding on inferior courts, by reason of the doctrine of precedent."

The ruling becomes the set precedent (Anil Kumar Jain )in case law and binds future cases.

If i i am wrong than explain to me.


(Guest)

@hema

 

Very good answer explain by you.

I hope you continue  to write in this forum as for sharing knowledge.

And dont mind as you said,"If I said any thing which would hurt you, I am really sorry.  I say again, I appreciate your efforts to enrich this family forum.   "

 Dont say sorry to Roshni B  she dont mind .:PShe  sppreciate your answer thats sure.

1 Like

Roshni B.. (For justice and dignity)     05 April 2011

@ hema

 

thanks for your write up.

 

no,i am not hurt at all.Please dont think that way.

 

my main idea was to let the thread starter know that if waive off cud be dun in my case,there must be some law to support it,which his lawyer shud find out.so that he also gets it.

 

hence i wrote a bit further,to explain tajobs,when he raised a few points.

 

although this is my last post in this thread and i dont wish to revive my past trauma,nevertheless,just for ur information,after the mediation in 2009 ,i had appointed this new lawyer immediately and told him how i was pressurised


 

obviously i only depended on my new lawyer for advice.i also did not know of LCI at that time where i cud seek opinion.

he never advised me that i shud file a complaint in mediation centre against her.when i went back to the district court where my DV case was already pending,i courageously told the judge that mediator had pressurised me and made me sit in the centre till 10 PM.to sign the settlement but my lawyer discouraged me from saying so.and said so very specifically after the hearing also many times, that i shud not speak against her.hence her guts!

 

if i had not followed him and did my own thing,and if something went wrong,the same lawyer wud have said that i am in problem because of my own doings.so,u see,its difficult to decide in such situations.

u see,legal knowledge and information on wot i shud have dun in such a particular situation is not made available anywhere to the common man.but only he is blamed for ignorance of law.

 

i am not presenting any grievances.as my matter is over.

if u felt i did so,then maybe unconsciously they got reflected,not because 6 months got waived off or it happened thru POA,but because of the manner in which these situations were handled by persons whom we trust,right from drafting my DV case,till this stage.for example in DV Case,my lawyer took 6 months just to draft,and made me do all the running about to send notices to my husband and his parents.i went to MEA office thrice in summer months,when temp. used to be above 40 degrees to deliver these notices.and only 1 month left for my exam.

if i finally gave up and agreed with the forced settlement,it was not because of my own choice,but because i had experienced by now after many many incidents,that people i am relying upon may not fight for me with passion.

 

with the above comments,i close my comments now..


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