Upgrad LLM

play like the men and not like the boys --- part 4

Proprietor

 

What about the important point regarding the MoU and a draft of the MoU ?-------------

 

For that, wait for part 5 – the final in this series. But first, you understand the contents of part 4, here.--------

________________________________________________________________________________

 

Question : Is it then not true that a divorce proceeding and a complaint against spouse run parallel to each

other and therefore a complaint has to be registered against the spouse, if it is filed at the police station or

court ?

 

Answer : Yes, it is true. But such a complaint filed during the proceeding is considered pre-meditated and

criminally chalked out strategy to harass the spouse. Such complaints usually are very weak and do not hold

water in the eyes of the law. It is most likely to be treated as untenable (the complaint cannot be

maintained and held against the spouse).

 

_________________________________________________________________________________

 

Question : But earlier, you said, during a divorce proceeding, a complaint cannot be filed since the matter is

sub-judice. You also said that additions/ addendum can be made to FIRs but not to divorce matters already

listed in court.

 

Answer : Yes, that holds good in a mutual consent divorce. When you discuss with your advocate, use the

term “ CAUSE OF ACTION “…. Your advocate will understand.

 

WHY POLICE COMPLAINT ? UNDERSTAND THAT IN THE FIRST PLACE.

 

In a way, A POLICE COMPLAINT IS BASICALLY A NOTE PUT UP TO THE COURT that THE MATTER HAS

BEEN BROUGHT TO THE NOTICE OF THE LAW AND ORDER MECHANISM OF THE STATE, BY THE

COMPLAINANT.

 

This means the LAW HAS BEEN SET INTO MOTION.

 

You must understand that a wafer-thin line exists between a regular divorce and mutual consent divorce.

 

Yes, both are fruits, but one is the apple and the other is the orange.

 

AMENDMENT / APPENDIX can be added to any matter, in any court of law, be it IN A REGULAR DIVORCE OR

MUTUAL CONSENT DIVORCE.

 

BUT, the ORIGINAL CAUSE OF ACTION cannot be ALTERED.

 

The spirit of the frame-work of law cannot be killed. You can alter the form of the law to suit the situation and in

a legally permissible manner.

 

But you cannot eliminate the law itself and also you cannot have the law ALIVE and DEAD

at the SAME TIME.

 

So, you can alter the form of the silencer of your vehicle, depending on whether you intend to have it at a rally

or on the main road for regular use. But you cannot eliminate the silencer itself, from the vehicle.

 

Also you cannot have a vehicle which has the silencer but still does not have the silencer.

 

You cannot say you are speaking and silent at the same time.

 

Either you are speaking or you are silent, at any given point in time.

 

You can do only one at a given point in time. You cannot do both.


Similarly, you can either go in for regular divorce or mutual consent divorce but you cannot have both at

 

the same time.

 

You cannot create mutually contradictory positions of a divorce by attempting to have the features

 

of a regular divorce accommodated within the features of a mutual consent divorce.

 

So, while a MCD is opted for and when the matter is sub-judice, a fresh complaint cannot be

 

registered and should not be registered by the Police or the Court. It amounts to contempt of court.

_____________________________________________________________________________________________________

 

Now, let us see this point to understand better.

 

What was the cause of the action of divorce being initiated ?

 

In a regular divorce, the cause is listed and the doors are kept open for arguments, counter-statements,

replies,…etc.

 

Usually, Allegations of abuse, torture, cruelty,…etc  ARE ALL CLUBBED AS THE CAUSE OF

 

ACTION that necessitates a Divorce.

 

But in a mutual consent divorce, the cause is a SINGLE TITLE “ IRRETRIEVABLE COLLAPSE OF THE

 

MARRIAGE and IRREPAIRABLE “.

 

There are no charges and counter-charges.

 

Also, in a mutual consent divorce, there are no arguments, no counter-statements, no replies,…etc.

 

Basically, you may say it is a closed door proceeding. No New entry  can be made.

 

Matter taken up, confirmation sought from both parties, decree granted and case closed.

 

In a regular divorce petition, there is an ELEMENT OF COMPROMISE that might exist unseen.

 

In a mutual consent divorce, the ELEMENT OF COMPROMISE DOES NOT EXIST AT ALL.

 

Matters are clear.

 

The point is clear " we did not find each other compatible.

 

we want to separate and move on our individual paths. "

 

So, as the name itself is clear, it is mutual consent.

 

No arguments, no counter-statements, no replies,…etc.

 

COUPLE TRIED LIVING TOGETHER, PASSED THROUGH THE MINIMUM CO-HABITATION PERIOD OF ONE

 

YEAR STIPULATED BY THE LAW, TRIED TO PASS THROUGH THE WEAR AND TEAR OF MARRIED LIFE,

 

BUT THE COMPATIBILITY BETWEEN HUSBAND AND WIFE DID NOT MATERIALIZE AND HENCE MUTUALLY

 

THEY DECIDE THAT THEY ARE NOT A MADE-FOR-EACH-OTHER PAIR AND HENCE DECIDE TO SEPARATE

 

AND MOVE THEIR OWN WAYS.

 

Hence, divorce by mutual consent.


If there are complaints, charges and counter-charges and cases, it has to come through the channel of

 

regular divorce and not through the channel of mutual consent divorce.

 

As mentioned earlier, The spirit of the

frame-work of law cannot be killed.

 

 


Total likes : 1 times

 
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Manager

Thanks Natarajan Sir..Very clear and detailed one about how the proceedings takes place.

Your time and efforts are very much appreciated.

 
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