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sachismita (A.M.)     07 July 2013

Please help me

Meri shadi 25 march 2012 ko budhdhist culture se hui thi.Mere Brother-in-law and Sister-in-law ne shadi se pahle kafi sari batein chhupai thi jo shadi ke baad mujhe pata chali.jinme unka financial status bhi tha.lekin maine kisi tarah ka virodh nahi kiya kyunki mujhe apne husband per poora bharosa tha.humdono hi working hai isiliye maine kisi se kuchh bhi nahi kaha.halanki is baat ne mujhe ander tak hila diya tha ki meri shadi ek aise ghar me ho gayi hai jahan shadi ke liye jhuth bola jata hai.shadi ke baad se hi sabhi mujhe apne hisab se chalane ki koshish karte the.mujhe tane mare jate the.meri buraiyan ki gayi.shadi ke pahle unki demand gold ke liye thi lekin mere papa ne mana kar diya.phir bhi mujhe mere ghar se kafi kuchh mila.dhire dhire halat badalne lage aur mujhe pata chala ki mere pati apne gharwalon se bahut darte hai.isi vajah se unhone mujhse kai jhuth bole.jab bhi unke jhuth pakda jate the hum dono me kafi bahas hoti thi aur ve jhuth per jhuth bolte jate the.had to tab ho gayi jab mere jeth ke sale ne ek social site per mujhe comment likha.lekin tab bhi mere pati chup rahe ki kahin bade  bhai ko bura na lag jaye.is baat ne mujhe kafi tod diya tha.tab mere papa ne step liya aur mere jeth ke sale se baat ki use samjhaya.ye baat mere jeth ko aur unke in-laws ko kafi buri lagi.mere pati ko unhone mutual consent per divorce ke liye uksaya.....mere pati mujhe dawayi ki behishi me court le gaye jhunjhlahat aur gusse me maine bina padhe papers per signe kiya.agle din jab mujhe kuchh thik lagne lagato maine papers padhe aur mujhe apni galti ka ahsas hua.lekin agle hi din mere pati apna saman le kar mujhe akela bimar chhod kar chale gaye aur tabse vo alag rah rahe hai.15 may se aaj 7 july ko lagbhag do mahine ho chuke hai.maine 17 june ko hi case withdraw kar liya tha.ab kya mere pati 1 saal ka separation ya 3 months ka separation dikha kar divorce file kar sakte hain.Main abhi unke gov qtr me rahti hun .mujhe mere in-laws se dhamkiya mil rahi hai qtr khali karne ke liye.kya mere husband ka department mujhe is qtr me rahne de sakta hai agar mere pati qtr surrender ki applcation apne department me dete hai?plz guide me.



Learning

 16 Replies

Adv Archana Deshmukh (Practicing Advocate)     07 July 2013

quartr ke bare me jyada sochene ke bajay apne pati se rishta sudharne par kaam kare to behtar hoga. Agar divorce ho jata hai to qtr kitne dinotak aap rakh payegi..?? take the mediations of some friends or relatives to improve the relationship between you and your husband.  If things go byond control or it seems that your husband is not ready for cohabitation at any cost then do not waste your life upon him.. leave him, get MCD and get remarried.

1 Like

sachismita (A.M.)     07 July 2013

mam maine shadi ke bad apne previous place se yahan (mumbai )me posting li taki mai apne pati ke sath rah saku.mujhe qtr allot hone me abhi 2 saal lagenge aur financially mai itni bhi strong nahi hun ki mai yahan ki pagdi aur brokrage charges de pau.maine har tarah ki koshish ki unhe manane ki per mere in-laws unhe aisa karne nahi de rahe .unhone abhi tak ek bar bhi mujhe qtr ke liye nahi kaha per meri nanad mujhe phone per dhamkati rahti hai.mai ye janna chahti hun ki kya mere pati in 3 mahino ka ya 1 saal ka separation dikha kar one sided decision karwa sakte hai.

Adv Archana Deshmukh (Practicing Advocate)     07 July 2013

Even if he files for divorce against you, he will have to prove the grounds for divorce as per law. The court will issue notice to you, so you can appear in the court with your lawyer and fight the case and contest divorce. Agar aap ki sehmati na ho to, itna aasan nahi hai aap ke pati ke liye court se contested divorce lena.

1 Like

sachismita (A.M.)     07 July 2013

mam m also working and m in a mini ratna psu.if we get divorce what i can claim like alumny,maintenance...and other legal rights.we have no child .i wanted to concieve in april but my husband denied.i loved him so much.but my in-laws ruined my life.unhone shadi bhi paiso ke liye hi ki thi.Isiliye mai in claims ke bare me soch rahi hun.

Adv Archana Deshmukh (Practicing Advocate)     07 July 2013

You can claim all your streedhan back. You are entitled to a standard of living that you had when you were living with your husband. So, if your husband's salary is much more than you then you can claim maintainance from him.

1 Like

sachismita (A.M.)     07 July 2013

mam he is in customsand his basic pay is less than mine but his unofficial income is very high.i know court will consider his basic pay only.

how can i teach lesson to my in-laws.i don't wanna harm my husband.i know he is pressurised by his family.

Adv Archana Deshmukh (Practicing Advocate)     07 July 2013

hahaha....... :-) how will you prove his unofficial income dear........??? You can file a complaint with the anti corruption bureau if you want to bring him to books. What can you do against your in-laws if you do not want to go against your husband.. If you still want to save your marriage then, try taking the help of some marriage councellor who may help you. Talk to your husband.

1 Like

sachismita (A.M.)     07 July 2013

mam agar humara dismissed case hum reopen karwate hain to divorce  ki kya prakriya hogi?kya tab bhi 6

 months sath me rahne ke liye court hume kahega?kya tab bhi humari counciling hogi?in sab me kitna waqt lagega?

Adv Archana Deshmukh (Practicing Advocate)     07 July 2013

dismissed case reopen nahi kiya ja sakta. you will have to file a fresh MCD petition. The court will grant 6m period for reconciliation efforts and do councelling and if you still want divorce after 6m then court shall grant divorce.

1 Like

sachismita (A.M.)     08 July 2013

mam what will be the ground for fresh MCD petition?

Adv k . mahesh (advocate)     08 July 2013

for applying or to file for Mutual consent divorce the previous discussed grounds are not sufficeint and some strong more points has to be added and also go through this para 

The sanctity of marriage cannot be allowed to be undermined by the whims of one of the annoying spouses. The law allows divorce by mutual consent, but its intent is not to facilitate the dissolution of marriage. To save marriage and  not to hasten its dissolution should be the core concern of courts

Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added) This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011.

Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court.

The High Court through its “well considered order” dismissed the appeal of the husband against the decision of thetrial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court.

Why it is tough

One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself.

The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue.

A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction!

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties.

After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.

 Withdrawal of consent

For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.

The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree.

The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.

In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.

Special power

However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties.

Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”.

Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy ofdissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act.

Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!

Divorce with Mutual Consent- What it is all about

 Section 13-B of the Hindu Marriage Act, 1955, deals with divorce by mutual consent

Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent

A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife

After filing the joint petition they must wait further for at least six months

It is imperative that mutual consent should continue till the decree of divorce is granted by the court

If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count. 

https://indialawyers.wordpress.com/2011/06/25/divorce-by-mutual-consent/ go through this site 

Adv Archana Deshmukh (Practicing Advocate)     08 July 2013

@  sachismita,

 

The ground for fresh MCD petition shall depend upon facts of the case. However, in MCD ground is not a serious issue, your lawyer will take care of that. Make last attempt to save the marriage and if your husband do not show signs of improvement then go for MCD.

 

1 Like

(Guest)

Agree with experts.

1 Like

sachismita (A.M.)     08 July 2013

mam is the one year separation is very necessary for MCD?


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