Mutual divorce
Sudarshan Mudaliar
(Querist) 16 June 2013
This query is : Resolved
I got married in 2009 and the marriage lasted only for 1 month. Later she moved out of my house and started staying with her parents in Nagpur.
9 months later she filed a case of Domestic violence and Dowry, and in their prayer they had asked for Interim maintenance
The case has been ongoing, In Feb 2012 order was passed for Interim maintenance, 2500 was decided on monthly basis, which we have been paying.
6 months later they challenged the decission in Session court for revision on grounds of inflation.
Here the Judge suggested for a Negotiation which would be done by a Judge.
Now in this mediation the party agreed for one time payment and close the case.
I understand we will have to file a case for Mutual Divorce, The questions that have are -
Q.1 - I dont want to pay money before decree of Divorce is passed as i fear the party will take money and withdraw consent / ask for reunion or hike in alimony
Is there a provision where the money /draft be submitted with court and once the Decree of divorce is passed, they can get the money / draft from court
Q.2 - Since Jan 2010 she is not staying with me, is the 6 month cool off period still required, can i ask for a waiver on the grounds that its been long we have not stayed together and That all the efforts of reconciliation between the parties to continue the present marriage has failed and there are no further chances of reconciliation between the parties any more.
ajay sethi
(Expert) 16 June 2013
in consent terms state that money would be paid on passing of decree of divorce .
file for divorce by mutual consent . six month cooling period wont be waived by family court
Sudarshan Mudaliar
(Querist) 16 June 2013
Divorce cases: HC says scrap 6-month cool-off period -
http://articles.timesofindia.indiatimes.com/2010-03-18/india/28141910_1_mutual-consent-divorce-plea-section-13b
Can this be used in my case ?
Devajyoti Barman
(Expert) 16 June 2013
Only supreme court can scrap this period. The decision would be of no help.
Advocate M.Bhadra
(Expert) 16 June 2013
When a couple gets divorced by mutual consent, the decision on whether any alimony/maintenance is to be paid as per term of settlement between them. In such cases, alimony/maintenance could be paid subject to the mutual understanding between the couple. The court passes the decree of divorce on terms agreed between the couple. The decree binds the couple and is capable of being enforced by the court.
In contested matters, the court intervenes and decides the issue of alimony/maintenance on the merits of each case. The power of the court to grant alimony is not limited to cases where the decree is obtained by the wife. Courts have powers to grant alimony to the wife even where the husband is granted a decree. It is quite possible there may be no alimony/maintenance awarded at all depending upon the facts and circumstances of the case. Assessment of the amount of permanent alimony is entirely the court's discretion.
There are no provision of cooling period in statute Marriage Act,but very recent the Supreme Court has held that a six-month cooling period should not come in the way of allowing the plea for dissolution of marriage by mutual consent when it has broken down irretrievably.
The bench noted that both the parties urged that since more than 18 months had elapsed since the original petition under Section 13 have been filed, the said period could be counted towards the cooling period of six months stipulated under Section 13-B of the Act.
Raj Kumar Makkad
(Expert) 04 July 2013
I strongly endorse the opinion of Bhadra.
