Civil Procedure Code (CPC)

Divorce by mutual consent


Hi,

After nearly 2 yrs of trauma with suicidal threats, and desertion my wife and her family are willing for separation by mutual consent. This comes at a time when I was ready to file for judicial separation.

But they want an out of the court settlement, which worries me!!! They do not want to involve a lawyer also!!!I want  to know whether such a thing is valid in Law?

What all documents need to be signed so that there wont be any trouble with them in fiture?

Any guidelines regarding the mode  of  finalcial transcation /maintenece?

Please let me know what all needs to be done in such a  case.

Vimal…

 
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OFFICER

It is better you sort out the problems with your wife and in-laws.   Firtst chalk out the settlement plan involve your close relatives.  Record all the things in the meeting in your mobile having recording facilities.

Then you must do the following things:

1.  Sort the plan

2. Insist divorce by mutual settlement in court.

3. Prepare agreement that must be registered.

4. Pay the amount by way of cheque or DD.

 

ARUN


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In Divorce by mutual consent,Once wife has waived her right of maintenance or taken lumpsum amount she cant claim maintenance again .Thus,mention a clause inserted in agreement(MCD petition) between parties that she accepts x amount as lumpsum payment in full and final settlement and that she shall not be entitled to claim any maintenance amount in future.

Parties are staying apart for minimum 1 year before filing of MCD.

MCD petition is drafted by your lawyer,wait for 6 months statutory period.

 
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IT PROFESSIONAL

Dear Vyas Sir,

If first motion of mutual consent both parties were appeared and permanent alimoney is declared. But if in second motion or before wife is saying it is fraud.  Even her petition for advancement of date (6 months statutory period) rejected by familycourt judge.

AND FINALLY AFTER SIX MONTHS SHE HAD WITHDRAWN HER CONSENT,

AND NO SETTLEMENT IN BOTH PARTIES DUE DIFFERENCES. EVEN SHE WANT TO JOIN Matrimonial family. BUT MAY BE NOT with GOOD INTENSION.

NOW SHE IS CLAIMING MAINTENANCE.

WHAT ACTION SHOULD BE TAKEN FROM HERE. I M GOVT EMPLOYEE.And everybody is saying you have pay month according to 125 CrPC.

How to face . Even threat for 498a and other gender bias law.

pls suggest me.

thank you

 
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A matrimonial lawyer is often flooded with lots of questions by the clients.

Divorce cannot be granted to a Hindu couple if either of the spouse withdraws the consent before the judicial decree is passed.Read Section 13 (B) (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

The divorce provision in Hindu law provided that once the application for dissolution of marriage was presented before the competent court, either of the applicants could withdraw the consent within 18 months.

Read this link in which supreme court said this;http://articles.timesofindia.indiatimes.com/2011-04-19/india/29446819_1_divorce-by-mutual-consent-grant-divorce-matrimonial-court

 

The Supreme Court in Rohtash Singh, Petitioner v. Smt. Ramendri AIR 2000 SC952  case,held that wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125, Cr. P.C. and the plea of desertion by wife cannot be treated to be an effective plea in support of the husband's refusal to pay her the Maintenance Allowance. After decree for divorce is passed she is under no obligation to live with the husband but though marital relations come to an end by the divorce granted by family Court under S. 13 of Hindu Marriage Act, the respondent continues to be wife within meaning of S. 125, Cr. P.C. on account of Expln. (b) to sub-sec (1) of S. 125 which provides that a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4)

 

Now if she filed 125 case ,you have to pay maintenance as set out by the court.If she is threatenning you ,filing 498a,then apply anticipatory bail,take atleast one proof of her threat like SMS,phone calls etc.

Defence is given in section 125 of crpc ,just read it,The Court takes into account various factors that would affect the quantum of maintenance to be decided upon, such as, the status and financial position of the parties concerned, the number of dependants on the respondent, etc. Although the wife who makes the application for maintenance is earning sufficiently well for herself, she can yet be entitled to alimony in case her husband's income exceeds way beyond her own. This reasoning being on the premise that the wife is entitled to live as per the standard and status of her husband. The order of maintenance is subject to change. In other words, the amount of maintenance once fixed by the Court can be altered if there is a reversal of circumstances. There can be an enhancement or reduction of the same depending on the circumstances at that particular time.

 

 
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