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Sachin   10 December 2015

Not sure of my advocate's attitude and his suggestions

I am a 34 year old man. I was married a couple of years back and both of us began staying separately after a period of 8 painful months. Although an arranged marriage it didn't involve any sort of dowry in it (not even a single penny, nothing) as my family and I strongly condemn this system.

Due to strong differences between us a mutual divorce petition was sent from my wife's side which I agreed to by signing and got it filed through my advocate. We were supposed to meet for the second and the final motion of the mutual divorce but she didn't turn up and the date was postponed to a future date delaying it by two more months.

Q1: My advocate said that if she doesn't turn up again then a petition will be filed from our side for a contest. My question is whether this will land me in trouble?. Is my advocate trying to mint some money by simply converting the mutual divorce case to a contested divorce case?.

Q2: What if my wife files a contested divorce petition and I don't respond to it?.

Q3: What if I file a contested divorce and she doesn't turn up again?. Will it mean that the marriage stands cancelled automatically?.

Q4: My wife is a working lady. In spite of that can she go ahead claiming a hefty alimony/maintainance lawfully?. What if she leaves her job midway only to go for a claim and harass me?.

Madam I am from a very humble family and not very strong financially yet. Can someone kindly answer me in this regard?.

Best regards,



Learning

 11 Replies

Kappil Cchandna (Expert Bail & Criminal Defence Lawyer at Delhi Supreme Court of India)     10 December 2015

Sir,

 

There is time of 6 to 18 months between first motion and second motion, therefore it is better to convince your wife to come and go for second motion again.

 

Warm Regards

Kapil Chandna Advocate

9899011450

P.Bashista (Advocate)     10 December 2015

Point wise reply:

Your lawyer is correct. If your wife doesnot turn up for filing of the second motion within 18 months from the date of allowing of first motion then this first motion becomes infructuous. So if you feel you can convince your wife to come and move a second motion within these 18 months then you can get a mutual consent divorce and no contesting divorce petition would be required to be filed. In regard to the trouble it is a subjective issue. If you file it your wife might decide not to divorce you and come and contest it. She might also file a 498A case against you but all these are hypothetical situations, which i suggest you should not worry about.

If your wife files a contesting divorce then indirectly it will solve your purpose. Do not contest it. Court will give her an ex-parte decree. And you will get divorced. But i doubt that she will ever do it as the better option for her is to come and simply file the second motion in your current mutual divorce case. 

If you file it and she doesnot appear before the court then you get an ex-parte. 

If she is earning good and the financial difference between your earning and her is not massive then dont worry about this as well. As you say that you are not financially much well so this issue also rules out from your case.

 

Sachin   10 December 2015

Thank you very much for your reply Sir.

Days of persuasions are gone as we are no longer on talking terms. Both have developed a sort of hatredness towards each other mutually. 

I didn't understand one thing which my advocate told me that he had filed the petition on my behalf in the month of July and hence I had to appear in the judge court in the month of December. Now that they didn't turn up the date was postponed to Feb. Is this really possible?.  I am not sure of what he is up to. Can you figure out the situation from whatever I have written in this note and tell me if he is on the right track or is he just bluffing me?.

 

Sachin.

SAINATH DEVALLA (LEGAL CONSULTANT)     10 December 2015

Better wait till the next motion and then plan the future course of action.Any wrong step from U may lead U into legal troubles.

Sachin   10 December 2015

Thank you very much P. Bashista sir.

So you mean I should not go for a contest right?. But my advocate said that he is going to file one on my behalf if she doesn't turn up again.

 

Sachin.

P.Bashista (Advocate)     10 December 2015

Basically when you file a first motion then there has to be a gap of 6 months before you go for second motion from the date of admission of your first motion by the court.In a mutual consent divorce petition the couple has to file a fresh petition of second motion once the period of six months expire, with a certified copy of the first motion order. Atleast in Delhi this is the practice followed by the family Courts.

Sachin   10 December 2015

In that case I shall refrain from filing a contested divorce petition from my side.

P.Bashista (Advocate)     10 December 2015

See the point is when you will file the contest petition then you have to disclose in your petition that you are filing so as she did not turn up for second motion. But in that case Court will ask you that has the 18 months expired, how can you say that she is not willing to file the second motion, etc. With a first motion order in your hand you are at a very advanced stage. Better not to waste it like this.

I suggest that if you are not in touch with her then convey the message through her lawyer. Ask your lawyer to discuss with her lawyer. 

Sachin   10 December 2015

Well in that case I must say that my advocate is keeping me in the dark as he hasn't informed/discussed/consoled me by retorting any such law from the rule book.

 

Can this fresh filing be done from any of the sides then?. I some how do not want to get in to this trouble of contesting. As advised here by many of you it is only fruitful to not file a contest and not respont to a contest from her side thus giving me the option of ex-parte decree.

Pardon me for the lame questions (whic is primarily due to my ignorance about the law) but this is really worrying me!.

 

Thank you,

Sachin.

Sachin   10 December 2015

Sorry for being lame again.

By first motion do you mean the filing of the petition by my advocate or the date which was given by the court for both of us to appear?. I again apologize for the ignorance.

P.Bashista (Advocate)     10 December 2015

When you and your would have filed the mutual divorce petition you both must have appeared before the Court and given your statement and signed it. That date Court must have passed an order. That date of passing the order is said to be first motion passed. 


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