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stolenheart (teacher)     01 January 2016

Nullity decree challenged, can we go for mcd

Hello every one. This is in continuation to my previous thread. I am thankful to all for guiding me. I had thought that things will be smooth now. But it was a short time breather for me. As I had stated earlier, the decree of nullity of my daughter was an ex-parte judgment and now the boy side has given the application for setting aside the decision and to re-open the case.Chances are that it may be restored, as the courts are usually lenient on this account. I don't know what to do. This process may involve a long term legal entanglement, which may drag for years. I have not yet been able to get my daughter married. The boy side is offering me only one option - to agree for mutual divorce. Thinking of the prolonged legal entanglement, I may agree for that, but is it possible now? and How? Once the decree of nullity has been obtained, how can one go for mutual divorce? I have tried to search for any such precedence in court of law but have not been able to find any ruling. Is there any way out? Can the family court accept my request to convert the proceedings held so for under section 12A to 13 B and grant MCD, but waiving off the necessity of re-aapearance for the second time after the gap of 6 months. My fears are that the boy side may withdraw their consent in between and may not come for the second time. I am in a dilemma. If I do not contest for the continuity of decree of nullity and agree for MCD and the boy side do not come for the second time or withdraw their consent. What is the legal remedy? Does the family court has any authority to change the section or  give some ruling which is to safeguard the life of some girl?  Thanks in advance to every one who can devote some time to this dilemma of mine.



Learning

 6 Replies

fighter (Software professional)     01 January 2016

yes....section will be definitely changed if you both agreed....or else you can fight nullity case based on merits for years.......if you win it's ok...if you loose...time will be waste..

1 Like

prabhakar advocate (advocate)     01 January 2016

My answer will be lengthy.  Because I sympathise with you and your daughter.  First, your apprehensions are correct.  Had I been in your shoes, I would also apprehensive of the same.  Once you take such steps - like allowing him to get the ex-parte annulment decree is set aside and lateron, you take steps to withdraw the case and again file mutual consent divorce petition and during the cooling off period of six months, he would go back from his promise and again you will start a fresh petition for divorce or annulment (annulment ground becomes weak by that time) - there is every reason for you not to believe him.  On the other hand, let us see this thing in his view point.  A nullity decree has been passed against him on the ground of impotency, which would create problems to him to get married again.  So, he wants that nullity decree has to be set aside.

Now, nullity petition cannot be converted into mutual consent divorce case for the reason that annulment petition itself avers that there is no valid marriage.  On the other hand, the same petition converts into MCD, it acquiesces the factum of marriage and goes for mutual consent divorce, which is quite contradictory in nature.  So, the judge would direct you to withdraw annulment petition and file fresh MCD and get consent divorce decree after six months. 

Indian courts are wrought with consummate delays.  So, you have to bear with them.  You put strong objection against his application to set aside the ex-parte decree nullifying the marriage.  Once your son-in-law agrees for mutual consent divorce petition, get it reduced by way of memorandum of understanding wherein, it has to be explicitly said that the girl is withdrawing the annulment petition on the assurance on oath from the boy that he would be ready for MCD and he will give his consent in the first motion as well as second motion and he will be estopped to withdraw his consent after the first motion before the second motion and in the event he withdraws his consent or does not turn up for the second motion, the girl is entitled to have valid mutual consent decree.  The MOU also specifically should mention that the girl has also got the option to reopen the annulment case, from the stage where it was withdrawn, in the event if the boy does not turn up for second motion, in addition to  that the girl has got a right to file contempt case against the boy.  These are, I know, perfunctory precautions and not fool proof measures.  But given the circumstances, this is the method, that is practical.  If you do not have any iota of confidence on the boy, then go ahead and continue annulment case with vigour.

My warm wishes.

1 Like

stolenheart (teacher)     01 January 2016

Thanks a lot sir. And I wish a happy and prosperous New Year for you and your family. I am thankful to both - Mr. Fighter and Mr. Prabhakar. 

Respected Mr. Prabhakar, it appears you have really touched my chord. And I have the same apprehensions what you have discussed. 

Only problem for me is how to address to the hon'ble court. Can I quote some precedence? Will the Hon'ble court accept my plea for mutual consent divorce? Can it not frame me for misleading the court?

Thanks

stolenheart (teacher)     01 January 2016

Thanks a lot sir. And I wish a happy and prosperous New Year for you and your family. I am thankful to both - Mr. Fighter and Mr. Prabhakar. 

Respected Mr. Prabhakar, it appears you have really touched my chord. And I have the same apprehensions what you have discussed. 

Only problem for me is how to address to the hon'ble court. Can I quote some precedence? Will the Hon'ble court accept my plea for mutual consent divorce? Can it not frame me for misleading the court?

Thanks

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     02 January 2016

Dear Querist

as per your information the boy side filed an aplication for set aside the nullity decree passed by the court on your daughter's petition, argue the matter on set aside application and if the court allow his application then approach to court for councelling and before the counsellor settlled the matter amicably and execute a settlement with him along with the counselor and file MCD before the court u/s 13B of Hindu Marriage Act-1955.

 

the apprehension will be continue till the completion of second motion, hence there is no other option.

 

fight is not better if your apprehension will be true then file a petition for divorce based on cruelty before the court because withdraw the consent will also constitue cruelty towards the parties.

 

Feel Free to Call  

1 Like

T. Kalaiselvan, Advocate (Advocate)     07 January 2016

I agree with the views and opinions of learned advocate Mr. Prabhakar, he has given good and right advises, however the fact is any such MOU has no legal validity before court. It is not a valid  agreement that can be enforced in law.  However the wordings can instill a fear in the mind of the husband to a great extent that he may not try to withdraw the consent n 2nd motion in the MCD case (let us hope so). Alternately, the pressure given through annulment case will bring him down to your dictates which can find an early solution to this problem.

However as rightly observed, section 12 and 13-B are opposite to each other with their meanings hence without withdrawing the annulment petition a mutual consent petition may not be tenable. 

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