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CommonMann (Software Professional)     04 October 2010

Mutual Divorce 2nd motion

Just want to know, if in 2nd motion wife doesnot appears in front of court and husband wants divorce in 2nd motion, but wife knows she can drag the case till 18 months just to harass the husband and his family...then is it possible  that husband can get divorce asap before 18 months. I know husband can file divorce petition under HMA 13 grounds, but for that MCD should be withdrawn or any one (husband or wife) should withdraw it. Husband has all the conditions pertainig to maintenance has been already mentioned in MCD petition. For eg. Husband has already paid lumpsum amount in the form of DD as demanded by wife as maintenance amoun and same has been mentioned in MCD petition. Is there any way out to get divorce done asap. Husband has also filed a divorce case previuosly but it is withdrawn bcoz of MCD.



Learning

 8 Replies

Tajobsindia (Senior Partner )     04 October 2010

1. Ask this que. to the lawyer who drafted the MCD T&C does he have a convincing answer for you !

However:-


1a. If one party withdraws consent before expiry of MCD cooling period in full knowledge that T&C of MCD arte fulfilled in spirit by another party then the only option which is left is to approach Hon’ble HC and get relief.


1b. It is the fault of a Lawyer to guide his client to pay full and final before going in for 2nd. motion MCD.


Reasoning:

A lawyer knows the pitfalls of such Agreement based on experience and what has been learnt in legal studies otherwise he has no moral rights to remain a lawyer to the same client.

PERIOD

1 Like

Jamai Of Law (propra)     05 October 2010

Why the money was not put in escrow account or in other similar fashion?

Jamai Of Law (propra)     05 October 2010

taj of india is absolutely correct.

a blunder by legal counsel.

CommonMann (Software Professional)     05 October 2010

See the thing is the other party lawyer was husband's uncle's friend. He is actually a well known lawyer. Husband do not have any lawyer involved in this case. Husband has given money to the other party lawyer thats y this mutual divorce petition is filed. This is all game of believe. There will not be any problem bcoz somewhere in lawyerforum I read that wife cannot withdraw the case bcoz she has to give valid reason for that. Since in terms  and condition its mentioned she has received lumpsum amount and she cannot claim that in future. Only thing is she can drag the case till 18 months nothing more than that. HUsband just want to know is there any way out before 18 months if wife didnot turn back on 2nd motion for which posibility is very less. Husband just want to make sure if this happens then whats the next step.

CommonMann (Software Professional)     05 October 2010

Here is the link

https://courtnic.nic.in/supremecourt/temp/dc%201436107p.txt

https://www.498a.org/forum/viewtopic.php?f=8&t=5055

In this Supreme court has given divorce. This is the case between Maya Jain and ANil Kumar jain, in which wife withdraws consent but sinc eproperty rights are transfered to wife, divorce is granted.

TUSHAR SUMAN THAKER (ADVOCATE)     14 October 2010

Dear Charanpreet,

 

First of all it is clear that the case has not been handled very wisely by first withdrawing the matrimonial suit under section 13 HMA and secondly by giving the amount settled to the wife before the second motion under section 13B.

 

It also appears you are under a miscoception as regards whether the divorce will go through in spite of withdrawal of consent by the wife during second motion. It is clear that if the wife withdraws her consent during second motion within 18 months then the caourt will have no option but to dismiss the petition for divorce by mutual consent eeven though the wife has received payment in terms of settlement.

 

Even the HIgh Court does not have any power to grant you divorce in appeal against the above order of dismissal of petition under section 13B. ONly the Supreme Court by virtue of its extra ordinary powers vested in it under Article 142 can grant you a decree for divorce in the present case after you appeal to the Supreme Court against the order of the HIgh Court confirming the order passed by the trial court dismissing the petition for divorce under section 13B.

 

tsthaker@rediffmail.com

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     15 October 2010

Dear Charanpreet,

Not to worry. Even now you can save your interest, there is one bombay high court judgment, you can try that judgement wherein it is mentioned that even on second date, wife withdraw her interest then court can provide divorce.

Or you can try another judgement of supreme court wherein if earlier litigation was pending for more than 6 months then your six month waiting period can be waived off by lower court.

or there are few another options but for that you need a good lawyer or detailed consultation.

Regards

1 Like

TUSHAR SUMAN THAKER (ADVOCATE)     15 October 2010

Dear Kamal & Charanpreet,

 

With due respect to Sri Kunalji, I have gone through the Bombay High Court Judgment referred by you, but the same is not applicable in the instant case. The facts of that case was different. In that case the original petition under Section 13 was still pending and thereafter petition under section 13B was filed by the parties. In the present case the original petition under section 13 is withdrawn and thereafter petition under 13B is filed.

 

By the way not all Courts throughout India are following the Bombay High Court Judgment. In one of my cases in Delhi, I had in fact produced the said Judgment but the Delhi Court was not convinced about the same even though in my case the facts of the Bombay High Judgment was  similar to the facts in my case. However the matter is still pending and the Judgge has not decided on the issue. Therefore one has to see also where your case is pending.

 

tsthaker@rediffmail.com



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