opensky (self) 09 April 2015

Urgent:contested under cruelty, then converted to separation

Hi,

Please clarify following is correct guidance to me or not:

1.Spouse put cruelty petition (merit/demerit keeping aside for this question)
2. Mediation they offered MCD
3. Based on condition that all allegations will be withdrawn from initial petition I agreed
4. Statement was made in final agreement that all allegations are taken back and couple taking divorce on basis of living separately for 1yr. Same was given to mediation judgde - he rejected saying if allegations are withdrawn then what is basis.
5. So allegations para was removed, but 1yr separation basis was retained.
6. Passed by judge

Now my questions:
1. What has happened to the initial cruelty petition, does it remain in records under the case number forever, implying that on that basis, further settlement was reached
2. Does initial petition become invalid?(MY LAWYER AND MEDIATOR TOLD THIS IS AUTOMATICALLY INVALID AS NOTHING IS PROVEN) / I dont have any written document saying withdrawn by spouse or invalid by court
3. Should I have insisted to formally withdraw first case and opened new case for basis of divorce on 1yr separation

Please guide.
Thanks.

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9 Replies

opensky (self) 09 April 2015

hi, can anyone please comment?
thanks.

satya (Manager) 09 April 2015

Mediation totally against the male.

Adv. Chandrasekhar (Advocate) 09 April 2015

You get yourself confused. First divorce petition on the ground of cruelty under Section 13 (1)(i)(a). Due to mediation, instead of going for contested divorce, you both spouses have opted for mutual consent divorce (MCD) under Section 13 B. The primary condition to move mutual consent divorce petition is that the contesting spouses have been living separately for the last one year. If you fulfill this condition and tell the court that due to temparemental differences, then only the court will grant divorce of mutual consent. Now, you consented for MCD, the judge will record first and second motions with six months gap and grant divorce. Regarding allegations in the earlier divorce petition, you need not bother about them. But if any section 125, DV case or Section 498-A cases are pending, the party who filed such cases should withdraw them. You can put such condition before giving your consent for divorce.

(LAST REPLY)

satya (Manager) 09 April 2015

Excellent post of adv chandrasekhar

opensky (self) 09 April 2015

sir it is no waiting period now for 6 months also!..thats why i am confused!

opensky (self) 14 April 2015

Hi, can anyone please confirm which section basis this will be granted - cruelty13 (1)(i)(a) or mutual 13b?

Doubt is because..there was no first/second motion and six month waiting.

Adv. Chandrasekhar (Advocate) 14 April 2015

S.13 (I)(ia) shall be granted only after taking the evidence from both the parties and court convinces itsself about the petitioner's contentions. It cannot be granted straight away from the mediation. Only Section 13 B Mutual Consent can be granted without evidence and without argments and on the basis of the agreement reached between the parties. For that first motion and second motion are required and six months gap is mandatory between the first motion and second motion.

opensky (self) 15 April 2015

Dear Chandrashekar Sir, thank you for the kind clarification.

N R Dash.. (Advocate) 16 April 2015

Nothing automatically gets dissolved if the court has already taken cognizance. In MCD clearly mention this clause that whoever has filed whatsoever petitions before the MCD should get them withdrawn & the certified copy may be submitted to this court before 1st motion.