Mutual consent divorce u/s 13(b)
Chetan
(Querist) 06 July 2013
This query is : Resolved
Respected Dear Experts,
Need your help in my divorce case, I got married in 2009 and in 3 months we got separated, wife filed 307, 498A, 406, DV Act 2005, HAMA Act u/s 18. I am fighting since 3.3 years. Her absentee is more than 90% in all above cases. Previously her private advocate (he is misguiding her for money & because of him she has filed so many cases) came for compromise, I didn't agree, after few months my advocate advise me to go for compromise considering my parents health, my is father 68 years old & my mother is 63 years old a cancer patient, are also suffering along with me, considering all these facts i agreed. Now MCD u/s sec 13(b) was filed in family court in Oct 2012 and after filing the petition & affidavit in the family court the Demand Draft of Rs.550000/- & Cash of Rs.25000/- was handed over to my wife & her adv in front of the Nazar lady. Then we went to Judge's room where Judge asked wife if she has got everything & you both have decided to get separated & we said yes, judge signed the petition and a date was given. In the meantime she was supposed to withdraw all the cases filed against me. This was mentioned in the Petition & affidavit. They stopped attending the dates of criminal court & family court. Now I asked my adv why didn't you put that money in family court coustody instead of giving it directly to her advocate? My adv replies that he never thought he will be so mischievous & wouldn't keep his word of withdrawing all the cases once money is received. She stopped attending the criminal case dates after receiving money so we served summons on which she came after 2 dates with her adv in criminal case (307 498A). Where she told judge we have decided to compromise, so filed mutual consent divorce and I have received the money but still I haven’t received my gold. (a new bomb/demand). Judge said this court is not bothered of your out of court settlement & gave a date. My adv spoke with wife & her adv that, you have already received all the dues and nothing is been left which is also mentioned in the petition & affidavit. But they are still demanding more gold. Now I am demanding my money i.e. Rs.575000/- back & said I will fight these cases on merit. This entire thing went for 2 more dates and they withdraw one case, which is D.V act. I am still demanding my money back, because they haven’t withdrawn all the cases as decided in the Petition. In the meantime MCD u/s 13(b) time 6 months span is over, but she's not attending the dates. Family court summoned her so she came on next date without adv, and told the judge that She have received one time settlement but still gold is remaining, judge said, at the time of filing this petition you have agreed that you have received everything along with gold and there are no dues. Wife says I haven’t read this petition and they have taken our (of her & her adv) false signatures by making them fool. Judge said these things don’t happen here don’t talk rubbish & told her if you don’t want to withdraw the cases as per the petition you will have to return their money. Wife requested for a short date as her adv. was absent. On next date of family court, wife came along with adv & bought an application for withdrawing the Mutual consent petition. Judge said all the compliance is done and now after 8 months you are withdrawing this consent petition? Her Adv argue saying that petitioner.no.1 had agreed at the time of filing this mutual consent that he will return all the jewelry and so we filed this petition, judge said then why that point is not mentioned in this petition? And yourself & petitioner no.2 have signed this petition it means you both have agreed all the clauses, even as per para.8. you have received all the jewelry, and there are no dues. & para.10 says you have agreed to withdraw all the cases for which you have received the money, it’s not with the court, compliance is done. Court is saying if you want to withdraw return their money. Her adv says we can withdraw this consent petition without returning the money. Court has asked us to give our 'SAY' on their application.
Current situation in family court:
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• Judge is asking wife & her adv to return the money if they want to withdraw this consent petition, as they have received their compliance.
• Wife’s adv, says they can withdraw the consent petition.
• My adv says they cannot withdraw this petition without my consent as they have already received all the money through D.D & cash, so all the compliance is done as per the petition. And why court is entertaining their application when they (wife & her adv.) have already agreed the terms and conditions according to the petition.
• Next date on 9th July 2013.
My queries on current situation of family court are:
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. Can she withdraw this consent petition without my consent after 8 months when all the compliance is done?
. If the money would have been with the court custody then it was a different issue that compliance is not done, so she is withdrawing it, but in this situation, wife has all money in her bank account.
. Does this Affidavit doesn’t have any value which is was filed on oath by her in front of Nazar Lady in court & also telling the Judge that she has got everything, nothing is pending hence filing the divorce.
. If possible, Can you please provide me Supreme court or High court citation which clearly says “once wife receives her compliance as per the consent petition she cannot withdraw it, without husbands consent, or else she is bound for completing her compliance as per the consent petition or else return the money & with the Mutual consent divorce petition”.
Sorry, as it’s a lengthy episode but, just to make you understand, so you could provide me proper solution.
Thank you.
Devajyoti Barman
(Expert) 06 July 2013
1. Yes, your consent is of no consideration.
2.Consent for mutual divorce can be retracted at any point of time. You have no remedy besides adjusting the money with her maintenance amount to be granted by court on monthly basis.
Nadeem Qureshi
(Expert) 06 July 2013
Dear Chetan
my opinion on your point wise queries are below:
Can she withdraw this consent petition without my consent after 8 months when all the compliance is done?
Opinion: Yes, your consent is not mandatory.
. Does this Affidavit doesn’t have any value which is was filed on oath by her in front of Nazar Lady in court & also telling the Judge that she has got everything, nothing is pending hence filing the divorce.
Opinion: The affidavit is valuable and true as the contents of the affidavit and petition, it is proved that she has got everything.
. If possible, Can you please provide me Supreme court or High court citation which clearly says “once wife receives her compliance as per the consent petition she cannot withdraw it, without husbands consent, or else she is bound for completing her compliance as per the consent petition or else return the money & with the Mutual consent divorce petition”
Opinion: you have to search through google, indian kannon.com, judis.nic.in, manupatra, law pack or any othersites or contact a lawyer personally.
R.K Nanda
(Expert) 06 July 2013
consult local lawyer.
Raj Kumar Makkad
(Expert) 07 July 2013
None can be forced to get the divorce against his free will hence either of the parties can retract from its earlier consent thereto.
Chetan
(Querist) 07 July 2013
Respected Dear Experts,
Thank you all, but then it means anybody can file an affidavit and withdraw it after receiving money, so no value of affidavit that too filing it in court? then what will a common person do? So only, there is a crime in India because of such loose law. Now here my wife if she has got her money why she is not showing her honesty and withdraw the cases as per the petition? Why judge is not using its discrete powers? I am not saying she should give me a forceful divorce, but yes if court knows that she has filed a mutual consent divorce & she has received her money as per the terms & condition in petition, like the same way she must return the money if she wants to withdraw this petition without obeying its terms & condition. So affidavit is just a joke?.
Devajyoti Barman
(Expert) 07 July 2013
Them money can only be adjusted with the maintenance amount, if fixed later on. Other than this , it has no value.
prabhakar singh
(Expert) 07 July 2013
Unless a consent petition gets ripped as consent decree any party would be right in its' authority not to go ahead and can get back.
Although querist anxiety is correct that there should be some stage in the procedure
where from a party should not be allowed to go back.
Unfortunately only amendment in law can do it as present law does not address it and i think there can not be a citation you are looking for.
V R SHROFF
(Expert) 07 July 2013
SHE IS PLANNING WELL TO HARASS YOU.
You still continue trusting her, after so many cases against you!!!
Whom to blame, if you handover valuables to her, though on affidavit??
Law is clear, If she withdraw her consent, it is no more MCD. So no Divorce..
Handing Over anything must be a part of CONSENT TERM, to be delivered after Order of Divorce and on or Before a DIVORCE DECREE is drawn.
If you pay 50 Lakh, purchase a Flat, but do not take possession and Key, You have to wait for Due process of Law for few more years to reside in that Flat!! Must do it at a time. No parting with possession, no parting with money!!!
Your Affidavit proves payment, not Divorce.
Your Advocate could have safeguarded you, your Divorce and your payment cleverly.
Now you are at her mercy!!
U May ask your Adv to Lodge criminal complaints 420 cheating, breach of trust criminal cases , if she try to oversmart you.
Rajendra K Goyal
(Expert) 07 July 2013
well advised, Agree with the experts, nothing more to add.
Advocate Ravinder
(Expert) 07 July 2013
The author was asking regarding the Affidavit--Does this Affidavit doesn’t have any value which is was filed on oath by her in front of Nazar Lady in court & also telling the Judge that she has got everything, nothing is pending hence filing the divorce.
Nobody had clarified on this point. It is only Mr. Shroff sir had clarified the same ie. to lodge criminal cases under sec. 420, crl breach of trust etc. I completely agree with shroff sir.
Raj Kumar Makkad
(Expert) 07 July 2013
so far as the admission of the wife regarding taking the entire istridhan is concerned, it becomes a fact once she admits it but she can definitely back out of her consent for the divorce. The criminal case can definitely be filed by husband if she has obtained money from him in the name of MCD.
Chetan
(Querist) 08 July 2013
Respected All Sir/Mam, Thank you all for your valuable suggestions.
Devajyoti Barman
Adv Archana
Nadeem Qureshi - Thanks
R.K Nanda
Raj kumar makkad
Prabhakar singh
V R SHROFF - Special Thanks to Shroff Sir
Rajendra K Goyal
Ravinder.P - Thank you Sir
