Divorse u/s 13 (b) denied by wife, after cooling period
Yogesh
(Querist) 26 September 2015
This query is : Resolved
dear Sir/Madam,
Case History is as under:
1] She filed a case under IPC 498a against me and my old parents in the year 2007 and Hon.Court acquitted us in 2014 u/s 245(2).
2]she filed a case 125 in 2009 against me and court ordered against me in 2011.
3] she filed 125(3) in 2012 and also filed in other court u/s 125 (3)in 2014.
4] she also filed a case against me and my mother under DV Act 2005 12 18 19 20 22.
we both sit together along with our lawyers and by mutually she withdraw dv case and 125 case.
Then i filed a case in family court HMA 13 (1) (1a)against her for divorse. she presented and requested me to withdraw the same and file mutual consent petition at her town. and i did the same.
we both filed a Mutual divorse petition in her town and at the time of filling mutual consent we paid 50% amount to wife as agreed in the MOU. Hon. Secession Court given us cooling period for a 6 month. After 6 Month on 22/09/15 she denied for divorse out of court. and asked me to pay balance amount and also asking us to pay Rs.10000/- p.m.
Res. Sir,
i need your opinion on above subjects. 1]can I get divorse from her? 2] is she take U turn for denied of divorse? 3] is there any judgement of Hon. H.C. and Hon. S.C. to get help me.
Pl. provide the same asap.
Thanks a lot
Regards
Yogesh
SAINATH DEVALLA
(Expert) 27 September 2015
The reasons for her backing out is regarding the balance amount and 10,000 pm maintenance.When U agreed to pay a certain amount to her for MCD,she will not keep quiet.Regarding the 10,000/ it is left to U both to come for a settlement.
Keep in mind one thing,settle the matter amicably or else u will have to shell down more money for legal expenses, and she is alos at liberty to file 498A and DV again.
Rajendra K Goyal
(Expert) 27 September 2015
Whether the demand of Rs. 10000/- pm is new or was part of consent in Mutual consent divorce terms?
If it is new demand, she is not stable in her commitments. Either accept her demand or refuse to surrender towards her demands. choice is yours.
File FIR for criminally planned duping of the money in the name of Mutual consent divorce. If police does not lodge, file private complaint to the magistrate.
Meanwhile you can file divorce case.
Rajendra K Goyal
(Expert) 27 September 2015
1. Yes you can, by accepting her demand.
2. It seems so.
3. Citation not provided.
Rajendra K Goyal
(Expert) 27 September 2015
1. Yes you can, by accepting her demand.
2. It seems so.
3. Citation not provided.
K.S.Srinivas
(Expert) 27 September 2015
1. Yes, provided she agrees for mutual consent.
2. Yes.
sibasish pattanayak
(Expert) 30 September 2015
Respected Author Yogesh,
it is very unfortunate to see in this domain that , somebodies are opined about the Legal fiction not over standing the Law of our land rather as per their choice ,they don't know whether it is permissible by law or not, it is very unfortunate, these peoples are not at all to be considered as Legal expert.
The question raised by you on the recent issues 22/09/2015 between you and your estrange wife , as and when your wife with drawn her consent on completion of cooling period, your LD . ADVOCATE SHOULD HAVE TO MOVE THE CASE ON LAW POINT, AS THERE IS NO PROVISION TO WITHDRAW CONSENT BY ONE PARTY IN LAW, PLEASE READ CAREFULLY SECTION 13 OF HINDU MARRIAGE ACT AS A WHOLE( i.e. upto section 14 of the said act) for ready ref. Anil khetwani case law is very much applicable in your case , and many more case laws are there, please contact with your Ld. Advocate, you must get divorce on the same application , if not rejected on 22,09,15,
regards,
sibasish pattanayak, Advocate,write me: sibasish_adv@yahoo.co.in
T. Kalaiselvan, Advocate
(Expert) 02 October 2015
Mr/Ms Pattanayak is rather not guiding the author properly and also has not suggested where and which expert flawed in his opinion above, to the author's query. The sarcastic comments passed on the experts is not only ridiculous on the part of Pattanayak but also objectionable. If he is knowing the law better, he should have guided the author properly instead of asking the author to approach his own advocate. The author after having failed to get a proper response from his own advocate has approached this portal for further course of action.This should have been borne in mind.
Well there is no such thing called that one party cannot withdraw the consent at the second motion, nobody can be forced to take a decision. If one of the party withdraws the consent, the court may dismiss the petition as not maintainable.
In that event the aggrieved party can follow the procedure for contested divorce immediately.
SAINATH DEVALLA
(Expert) 03 October 2015
I support the views put forth by Adv Kalaiselvan.
K.S.Srinivas
(Expert) 03 October 2015
I also support the views of Expert Kalaiselvan.
Yogesh
(Querist) 04 October 2015
dear Sir,
Warm greetings!
we have filed mutual consent Divorce petition on 19/03/15 and Hon.Court given us 6 month cooling period, after the said period we approach the court but wife ask out of the court, that she is not interested to allow divorce to me & also asking me to pay Rs.10000/- per month.
but before that we had paid Rs.1 lac for filling Mutual consent for Divorce petition and decided that Rs.1 lac will be paid after granting the divorce. she had asked us to pay balance 1 lac and in addition pay me Rs.10000/- p m regularly.
this is the fact on which we need your esteem guidance.
One More thing is that I have a citation of Hon.Bombay High Court [(2008(6)Mh.L.J] Hindu marriage Act section 13B Unilateral Withdrawal of Consent : Impermissible (Hon. Justice V.C. Daga)
Rajesh Pratap Sainani V/s. Bhavana Rajesh Sainani. (W.P. No. 3556 of 2008 decided on 26/08/2008 at Bombay).
I am ready to pay balance amount which i had said before filing the matter. but she asking us more money. can you help us before my next hearing. My Next hearing is on 17/10/15
Regards.
SAINATH DEVALLA
(Expert) 04 October 2015
Either of them cannot withdraw,or it gives a chance for the aggrieved party to file a case on the other for deviating from the MCD agreement.That judgement could be useful.
sibasish pattanayak
(Expert) 05 October 2015
MY RESPECTABLE EXPERTS,
PLEASE GO THROUGH THE CASE LAW OF ANIL KHETWANI IN THIS REGARDS, TO GET A BETTER RESULT.
REGARDS,
SIBASISH PATTANAYAK,
Advocate
sibasish pattanayak
(Expert) 05 October 2015
sir,
is there any provision in Hindu Marriage act in case of 13B IF either party withdraw consent after cooling period, the court should dismissed the application? if yes please mention that portion of law, quoting from the Act. for clarity please go through the section 13 B (1) AND 13 B (2). ANY PARTY OF THE SUIT IS NOT empowered by this act to withdraw consent individually after cooling period alone.in that case the Ld. court should have to consider whether the terms and conditions stipulated therein in the 13B APPLICATION IS/ARE FULFILLED OR NOT and on satisfaction the Ld. court is empowered to pass a decree of divorce , its not my opinion, Honourable court observation.
regards,
sibasish pattanayak, Advocate
sibasish pattanayak
(Expert) 05 October 2015
Yogesh ji,
please go through the below mentioned case laws:- 1 ). ANIL KHATWANI VS. NISTHA KHATWANI ( MISC. APPEAL 1250/08 DATE OF JUDGEMENT :- 10/05/2012.This judgement passed by the Honourable Judge DR. VINEET KOTHARI OF Rajasthan High Court ( para 38,39,40,41,42,43,44, but my humble request please read this judgement in full )
2). NAVEEN KOHLI VS. NEELU KOHLI (2006)4 SCC 558.
3). ANIL JAIN MAYA JAIN - (2009)10 SCC 415.
this is the latest position of law if one party withdraw consent on the date of second motion or expiry of cooling period , the application for divorce on mutual consent should be dismissed, RATHER IT SHOULD BE GRANTED.
REGARDS,
SIBASISH PATTANAYAK, ADVOCATE , KOLKATA.
09874854594.
sibasish_adv@yahoo.co.in
