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JB (Analyst)     14 October 2014

Query on mutual consent divorce

Dear Sir,


Actually, my wife side file a mutual consent divorce petition and got the full and final settlement during the first motion.

After six months, our lawyer called me to the court.  I went there. But, she did not come. Their lawyer said that petition is returned because of not enclosing few necessary documents. But, he said that could clarify that in the court office about why he missed them. I think he did the same and court clerk also accepted it. The clerk asked me to sign in the register. I did the same. Also, their lawyer asked me to sign in the declaration form that we have enclosed the necessary documents.

Now, it is almost three months gone. My wife yet to come to court for second motion.Their lawyer says this week, next week,etc.


My lawyer says if she yet to come to court, then the court will decide x-party and provide divorce order.


I dont know what will happen next :-(


please advice on what will happen next.

Thanks in advance.



 16 Replies


(Guest)

It appears that your wife has fooled you again.  You should not have given lumpsum amount as settlement in one shot.  She has taken the money and now does not want to give divorce.  Your lawyer also seems to be involved in fooling you.  


Your divorce petition will have to be filed again as your MCD petition will stand rejected as your wife is not appearing in court.  Next regular divorce petition need to be filed and contested.  You cannot even claim back the money that you have given her already.  Also change your lawyer by taking NOC from him/her.

JB (Analyst)     15 October 2014

Respected Sir, Thanks for the reply. If she fooled me after getting money, it is clearly a forgery activity. Because, she only sent a mutual consent divorce notice to me first. I agreed to that notice. Their side lawyer only filed the petition after she is getting full and final settlement from me.

 

It s a huge financial loss for me :'(

 

Could she take back her decision now? Is it legal?


Kindly clarify me :-(. Thanks in advance Sir.

rising up again (FFF)     15 October 2014

JB - for a female everything is legal..  you cannot take your money back... 

 

This is your lawyers fault who has not controlled this....from the first motion. Now, you wil have to start afresh in the court and spend years fighting for the divorce. 

 

alternatively....  if u can make her agree to come for second motion by way of some common source or pressure or some power..... you may succeed, else my friend you are in trouble !!

 

1 Like

JB (Analyst)     16 October 2014

Thanks for your reply sir.

I have no words to explain my situation. There must be some strict laws to prevent such forgery activity.

I have read a news in a newspaper few months back that a court order states "a wife cannot change her decision after she got money and agreed for mutual consent divorce". So I thought it is impossible to change her decision :-(


Please refer the below article from Times of India:

https://timesofindia.indiatimes.com/city/jaipur/After-filing-mutual-divorce-petition-wife-can-not-withdraw-and-ask-for-more-money-HC/articleshow/13877189.cms

 

Kindly advice me sir. Thanks in advance.

Adv k . mahesh (advocate)     16 October 2014

first tell me when your wife sent you the mutual consent divorce petition have you appeared personally in the court hall and told you agree for the petition 

because normally both parties should appear in person in the court and then only you will be granted six months time and after that if both parties appear again and say their acceptence for divorce then only court will grant you divorce and in mutual consent divorce no ex party divorce will be granted and court will see 18 months time and if any one party does not appear then court will dismiss the petition and you have to again file fresh petition 

so first trace your wife and convince her and both appear in the court to get divorce decree

JB (Analyst)     16 October 2014

Dear Sir,

Actually my wife sent the mutual consent divorce notice to me after we separated(we did not communicate each other) for 6 months period. I too agreed with that. On 10th month after we separated, we filed a mutual consent divorce petition(their lawyer filed it). We both appeared in person in the court and signed in the petition. She got the full and final settlement from me on that day. After six months, our lawyer asked me to come to the court. I went and conveyed my acceptance. On that day, their lawyer said to us that our petition is rejected due to not enclosed few documents such as marriage invitation, etc. Also, he said that those documents are not necessary and he could argue and make them accept the petition. I think he did the same. I also signed in the court clerk register note for my attendance. But, my wife did not come to the court on that day.  There after their lawyer says she will come this week, next week, etc. Its almost three months passed. I am waiting still.

Kindly advice me. Thanks in advance.

JB (Analyst)     20 October 2014

After seeing the replies posted to my query, my understanding is as follows:

- Court will not grant ex-party divorce order in favor of me if my wife continuously fail to come to the court for second motion. After 18 months of time, the court will dismiss the petition. After that I need to file a petition for contested divorce.

- Even I cannot claim the full and final settlement which i have already given to my wife during first motion, though we know that it is a forgery activity.


Kindly advice me sir. Thanks in advance.

Adv. Chandrasekhar (Advocate)     20 October 2014

In Subhajyati Mazumdar vs. Arunima Mazumdar 1992 vol. I DMC 15 (DB)  cal. H.C. - wife didn't appear in second motion. Husband got divorce. In one Delhi H.C. judgment also husband did not appear in second motion. Wife got divorce.  Court said that non-appearance in second motion does not amount to withdrawal of consent.

JB (Analyst)     21 October 2014

Many thanks for the information sir.

From your answer, I feel like a drop of water added to a big desert. Let we wait and see how the things will proceed.

Adv. Chandrasekhar (Advocate)     21 October 2014

No. you should not wait and watch.  You and your advocate should work hard instead of relying the wife's advocate's assurances to prove your argument that wife once had taken benefits of the settlement in the first motion, she can neither rescind from the contract nor withdraw her consent and you should get divorcee in second motion after recording your statement. You should also collect the authorities on this point by putting hard work.

JB (Analyst)     21 October 2014

Oh! Ok Sir. Let me check about this with my advocate sir. Thanks for your kind advice.

JB (Analyst)     22 October 2014

Sir, I like to convey you that in the petition itself it is recorded that the sum of money given to her during first motion and also recorded she cannot claim more from me in future. The only problem is she need to come for the second motion. But, still it is not happening :-(

JB (Analyst)     22 October 2014

My lawyer said to me that he contacted my wife side lawyer. My wife side lawyer said that for second motion he called my wife to the court few times. One time, she did not come to the court. On the next time, their lawyer unable to come since he was in outstation. It is going like that for the past three months since I went to the court for second motion.

Also, my lawyer says it is my wife side lawyer's duty to bring my wife to the court. He cannot do anything more since it is mutual consent divorce. Anyhow, he will contact my wife side lawyer frequently on this.

How could she failed to appear to the court by saying such reasons for a long period?!! Can't my lawyer do any action except asking status to wife side lawyer?!!

Kindly advice me sir. Thanks in advance.
 

Adv. Chandrasekhar (Advocate)     22 October 2014

The time that allowed by court for second motion is 18 months from the date of first motion.  So, make efforts to bring her to the court for recording the second motion.  If she bluntly refuses, then you have to take appropriate steps to put effective arguments before the court that in spite of wife's absence, you are entitled to divorce decree on the ground that she availed all the financial benefits out of anticipated divorce decree and has not withdrawn her consent.   


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