Mutual consent divorce under the Hindu Marriage Act, 1955, is a subject of Section 13B and requires the performance of two motions.
The wife’s request for the entire amount of maintenance to be paid at the first motion in the current scenario, implies that the husband is exposed to considerable danger. This is due to the fact that in accordance with the decision of Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, consent should be there till the second motion and any one of the parties may revoke it before the decree is passed. Hence, should the wife get the full amount initially and later go back on her word, it will turn almost impossible to get the money back from her.
Courts usually suggest the alimony be divided into parts to avoid such situations. At the first motion, a small sum can be paid as a token, and the rest can be made conditional on the wife's presence and agreement at the second motion. Besides that, a written settlement agreement or a memorandum of understanding should be executed indicating the payment schedule, the withdrawal of cases in which parties are involved (under Section 498A IPC), and the consequences of default. Such a pact, being recorded by the court, offers a certain degree of enforceability.
Payment should always be made through bank instruments with a clear recital that they are subject to the successful grant of divorce. Furthermore, the request for the resolution of the criminal case after the settlement may be made under Section 482 of the CrPC (K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226).
In conclusion, the husband should not pay the full alimony at the first motion stage, in order to protect and safeguard the husband's interest ,the most effective legal safeguard is a well-balanced court recorded statement which is backed by payments in installments and to ensure the wife's appearance and consent at the second motion ,the court can be requested to record statements of both parties at the first motion and direct them to comply with the settlement terms.
