Vikram 23 August 2015

Appeal or wp against the 13b order (unilateral withdrawal)

Hi All Experts,

I have been cheated by my estrange wife in MCD was filed in Jan 2015 1st motion completed successfully. In July last week was 2nd motion of mutual divorce we both wife/husband signed affidavit for 2nd motion in front of registrar and submitted it court and mentioned it’s difficult to live with each other so we want divorce and it’s our final decision but when we reached in court room she took U turn in front of magistrate.. and she said she don’t want divorce and want to cohabit with her husband means with me So Judge disposed our MCD petition without giving next date and without giving time to rethink, judge raised the question to her why u submitted affidavit in 2nd motion but she was unable to give answer please suggest what can be done I know she is doing only to harass me there no battle about money or anything else as per affidavit. There have been contrasting judgments on this issue. The controversy is that since under this section both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it, and in present case she never file withdrawal application she gave oral statement after filed affidavit only to harrashed me it means she hostile in court. I read somewhere “The only purpose to allow withdrawal of consent may be if spouse are ready to live together. The withdrawal of consent in mutual consent divorce may be allowed only when they are ready to live together as husband and wife" This is clear intention of withdrawal of consent in Mutual Divorce”

so my question is

What’s the time limit to move HC against the order?
If I will move to HC against the order what should I do appeal, revision or WP?
She hostile in court is there any possibilities to file some case on her like perjury, breach of trust, COC, defamation doctrine of promissory estoppel etc.

Thanks in Advance

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4 Replies

saravanan s (legal advisor) 23 August 2015

there is no appeal in mcd.once withdrawn you need to file contested divorce on some suitable grounds only

Vikram 23 August 2015

Is orally withdrawl allowed even after filed affidavit ?

Isn't contemp of court ?

(Guest)

section 13B of hindu marriage act said that consent should be during the proceeding of mcd. unilateral withdrawal is possible if wife's consent is taken by fraud.

https://indiankanoon.org/doc/1108159/

same is said by section 28 by special marriage act.

so i think the rule is: her consent must live till the decree of divorce passed. if she withdraw, the mcd will be dissolved.

prabhakar advocate (advocate) 23 August 2015

1. There is different of opinion. Some say 30 days as per FC Act, and some say 90 days as per HM Act. But courts take 90 days as appealable period. If it crosses 90 days also for a few more days, the courts will generally condone delay, if proper cause is shown.

2. Appeal.

3. No. If there was any exchange of money from you to her pre or at the time of first motion or after that before the second motion, then your case has got some merit. Otherwise, only argument that left for you in HC is to argue that the consent at the time of second motion is not required and the consent at the time of first motion is itself enough to get through the second motion and withdrawal of consent at the time of second motion is perfunctory tactic to extract something financially.

Prabhakar - Advocate

(M)9958670740

Family Law legal aid panel-central Delhi (Tis Hazari).