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pitfalls in converting contested divorce to mutual consent??


 

I have been fighting a contested divorce for five years now. However, it may take few more years given the speed of Indian courts. To settle for a mutual consent divorce my 'wife' is asking a huge alimony (I have to take loan from relatives).



But anyways, if I go for mutual consent, these are my concerns:



1) I hear that I have to withdraw or convert my present contested divorce application to a mutual consent application. I cannot keep it on hold, in case she backtracks.



2) She has six months to change her mind and can withdraw consent even after taking say half the agreed alimony amount.



3) If she withdraws her consent, I have to file a fresh contested divorce application and all the five years of case till now will go waste.



4) She can even change her written statement in the new case. Presently there are contradictions in her WS which we can exploit.



Are the above statements correct?



Is there a way to ensure that she cannot change her consent once she has signed and received part of the alimony?



Thanks.



 

 
Reply   
 
director

once she recd half or 1/3rd of agreed amt, then she can not backtrack, and even ifm, she.. then she will refund the amount taken from you with some  penalty clouse.

6 month only given with the view that if both are partner willing to join again.

there is supreme court judgment that once the matter is resolved with some settlement agrement and wife already accepted some consideration, then she can not backout, she have to face criminal case on breach of settlement agrement.

in these case you have to deposit the remain may in coout and court will grant divorce in your favour.. please consult you lawyers on this point.

   


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Senior Partner

@ Author

Advantage of contested divorce:-
 
1. If it goes in your favour then alimony is OUT of the window for a reason it is purely based on ‘conduct’ of spouse.
2. If it goes in her favour then alimony is IN but it is subjective to conduct of spouses which is 'speaking' in the Judgment itself so you have another chance to contest this time on her 'alimony' claims which is worth penny savings if one spouse is not ready to meet ‘huge’ alimony demands. .


Disadvantages of a contested divorce:-

1. Subjective factors leads the spouse to no-where especially if they want to restart life and is suitable to mid life ages spouse litigations.  


Coming to your essence of brief:-

1. A Contested divorce with well thought about terms and conditions can be easily converted into that of MCD and previous no. of years invested into litigation makes spouse realise what they missing out in life and sooner comes to table to sort their last mile decision(s). here point to lock in is age of better half ! If she is still young looking then she will come to table sooner.


2. There is only forever fool proof way out in cases which have been contested and award in your favor that is she can not raise further civil / criminal demands as allegations in divorce stands proved and based on current various 41 Acts / Sections of various Family Laws in favour of metro wife's she has none options to come back to Court to re-open a case even if she remains un-married as contested divorce Judgment has that much power.


3. 5 years till date invested in a contested divorce the only decisive course of action i can suggest is to either spend another 1-2 years with counter cases filing service present divorce so that she comes to negotiation table due to pressure upon her of your counter cases filing.


BTW,  what is a 5 years old divorce case if no counter cases emerged from husband side is my inference from your post yet hopeful for a plain vanilla divorce decree ! It is doubtful to emerge so soon.

Hence, have ingredients of few ‘counter cases’ then only she will come half way otherwise let us wait for IrBM to become a Amendment reality till then!


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Reply   
 
propra

There is NO  way to ensure that she cannot change her consent

One can only hope for it !!!!

 

 

 

But money may be put in an escrow account ......OR.......... into the court .with a restraining order prior to paying money into court that ................ Money  would be released only after the decree of converted MCD suit and 90 days cool off thereafter.

etc etc .........

 

Terms and conditions of converted MCD or MCD right at the start of litigation ... may be made full proof ...... 

 

 

 

So money may be recovered or rather ....... Money may be prevented from being fallen in hands and then suffering from the retracting from the consent   ...... that's the maximun possible to achieve  ..................

 

but as far the continuation of "consent" is concerned  ............... .................... as it means ...................... is not irrevocable  and it can't be so!!!!......................... otherwise it is as good as coersion, pressure, allurement to concede for MCD ..................and it may sound as if contravening the basic terms of MCD that consent should be there and should continue the same  ..................... by free will and without any influence of any kind

 

 

 


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Reply   
 

Thanks to all for the replies.

@ Rahul - could you send reference of supreme court case?

Considering 'jamai of law'-s reply, I understand that even above judgement, or any other clauses put into the agreement, may at most help me get back the part alimony paid to her. I cannot ensure her consent till the end.

Even if I cannot ensure her consent, does anyone know of a way by which I can continue the contested divorce case, if she withdraws consent? This way I do not lose 5 years of effort.

@TAjobsindia, unfortunately the options for husbands to file counter cases are very limited. Wives have DVA and 498a! Could you suggest some options for husbands?

Also when do you think IrBM will get passed as legislation? Already BJP and Left have decided to oppose it. I think it may be another two-three years if at all.

Could someone also recommend a well experienced (20+ years experience) lawyer for cross-examination of my wife in trial court. He/she must be able to dissect the case thoroughly and come up with a plan of attack and execute it.

Thanks.

 
Reply   
 
propra

 

 

http://www.lawyersclubindia.com/forum/Re-One-party-cannot-withdraw-consent-for-divorce-HC-36613.asp?1=1&offset=1

 

 

There is HC citation in your favour.

 

 

Though there is clear difference between promise and consent ...............and especially where  there is a clear provision to allow a party to withdraw consent without even needing to give any reason to do so!

 

 

 

 
Reply   
 
Lawyer

the family court or District Court cannot convert the already pending case to that of mutual consent only Supreme Court can

(1)withdraw the present case by giving a joint statements of agreement that both the parties had agreed to file petition for divorce by mutual consent and final agreed alimony amount be also mentioned she had recived the part payment of alimony statements be made on oath. 

(2) i am afraid to say she can withdraw her consent anytime. (Latest Supreme Court verdict)

(3) and (4) elements of risk you have to take. 

moreover keeping in veiw of the infragility of reltion you need to inject the thoughts to her by realtives or other acquiantances that it is for the benefit of both of you coz without divorce she will also be not able to go on in life.

go ahead with extreme calm and downward attitude which is utmost required in these cases.

Hope this will help

 

 

 
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