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Judgement_Day (Supervisor)     13 February 2012

Walkout from mutual consent

My friend had filed a mutual consent with her wife 6 month ago, now she wants to walkout from mutual consent.

Can she walkout? Can my friend move to high court or supreme court as he has all the proof which he can prove her cruelty?

His advocate told him to file a new divorce petition, but my friend is trying to move to upper court

Can he challege mutual consent walkout to upper court?



 7 Replies

adv. rajeev ( rajoo ) (practicing advocate)     13 February 2012

Instead of going for appellate court it is better to file fresh petition.

Chaitanya_Lawyer_Mumbai (Lawyer)     13 February 2012

in MCD second motion can be done anytime between 6 to 18 months of first petition.

If either party is not coming for second motion,court keeps gives dates till 18 months,then dismisses the petition.Either party can withdraw consent till completion of 18 months.

Nothing can be done by the other party against such harassment.

It can be one of the cruelty grounds in divorce petition, which such person have to file after withdrawing the MCD petition.

Tajobsindia (Senior Partner )     13 February 2012

@ Author


1
. If the couple had agreed to certain terms and conditions and one spouse has fulfilled his part under mutually agreed terms and conditions then he has a case and can move to superior Court to now bind wife and get over with MCD Decree in proceedings as after enjoying benefits from those terms and conditions wife cannot resile. {This is view of some of Hon'ble HC's / SC too in couple of decisions}



2. If the MCD first motion was launched as plain vanilla MCD without any agreement on terms and conditions and just as spur of the moment launch before
Civil Matrimonial Court and neither party was required to fulfill mutually agreed terms then either party can walk out from giving consent during second motion. Moreover metro wives have been given sanctity to walk out even after 2-1/2 years instead of 6 - 18 months as original legislative intent was! {This is view of Hon'ble SC in recent decision}


Well then under
Para 2 circumstances plain divorce is a option that is suggested aptly by your friends Advocate to your friend. 


3. Your brief is not very clear if wife enjoyed benefits accrued from mutually agreed terms and conditions and or was it a plain MCD with no terms and conditions except they both want to get rid of eachother!

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     13 February 2012

Yes she can walk out at any time before 2nd motion is finalised - and there is no appeal from that. As the lawyer says you'd have to file a unilateral divorce petition 

Judgement_Day (Supervisor)     15 February 2012

Thanks everyone

But his lawyer is saying if he go for fresh dicorce petetion maintaineance will be start immediately.

Is it so?

Judgement_Day (Supervisor)     15 February 2012

@@Tajobsindia

Sir it was with terms & condition with consent filed & signed mutually by both the parties in front of magistrate & confirmed in front of Counsellor.

Chaitanya_Lawyer_Mumbai (Lawyer)     16 February 2012

If the terms & conditions included payment to be given to her on first motion & if it has been fulfilled,

he can appeal to HC after she withdraws the consent to petition or after court dismisses the petition.


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