Mcd before 1 year

Only an MoU can be drafted with provision for filing of an MCD petition after expiry of one year period since date of separation. Nothing more can be done.

                                          An important question arose in a case pertaining to Hindu marriage law as to whether a divorce on mutual consent can be filed within one year of marriage or not? In a landmark case, Sweety E M v. Sunil Kumar, AIR 2008 Kant 1, the 33 year old husband was living and working in England and the wife was settled and working in India. Within a year of the marriage, they filed for divorce through mutual consent divorce as they had not lived together and had no hopes of reunion. Lets not forget, while marriages are celebrated on grand scale by families in India, the most important ingredient is often missing – mutual interest and respect to take the relationship forward for a whole lifetime. The appeal in the abovementioned case was dismissed by the Court on the grounds of incompletion of one year of mandatory separation. The appellants were not satisfied by the decision of the Court and appealed to the High Court. The High Court observed that both the parties are mature enough to decide their own good and there were no justified reasons to keep them forcibly together in the matrimonial bondage. It further observed that realization from the burden of an unwanted marriage would help them to re-set their life and career and it held that divorce was the only solution to break the matrimony.

                               Sec. 25 SPL. MARRIAGE ACT:------ Voidable marriages.- Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity, if- (i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage ;or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872): Provided that in the case specified in Cl.(ii) the Court shall not grant a decree unless it is satisfied- (a) that the petitioner was at the time of the marriage ignorant of the facts alleged; (b) that proceedings were instituted within a year from the date of the marriage; and (c) the marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of existence of the grounds a decree : Provided further that in the case specified in Cl.(iii), the Court shall not grant a decree if,- (a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or (b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or as the case may be, the fraud had been discovered.

i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;

ii) A flawlessly drafted MoU (Memorandum of Understanding) that settles the terms on which you part away, people don’t understand the importance of this, this is extremely important so as to end the matters with a finality once and for all, there are no loose ends and make sure there is no litigation in future;

Once the above is done – you have to get drafted the Divorce petition that encapsulates the contents of your earlier MoU.

After Court

When you file your divorce by mutual consent petition – it comes up for hearing and your statements are recorded, then the court gives you a period of 6 months (basically to think over your decision) after which,  on recording of final statements divorce decree is passed.

Originally posted by : Rama chary cell no:9989324294
	i) A separation of one year before filing the case please note that actual physical separation is not required, even if both parties are sleeping in the same bedroom they can be said to be seperated for the purposes of mutual consent, if they are not living together as husband and wife;

Hi Rama

Thanks for this theoritical excerpt from a law book.

My marriage is an year old now but still I have to wait for 5 more months to get over of one year of separation period.

I talked to several lawyers ( SEVERAL)  and all have the same opinion that I should wait for another 5 months as judges won't entertain this statement that :

"Though we were living in same roof but were mentally separated due to personal/temperamental differences and marriage remained non-consumated"

And although my first marriage anniversary has passed but my MCD appeal will be rejected and I will be forced to wait for another 5 months to apply for first MCD motion.

Have you seen any such case where judge entertain MCD first motion before an year of separation (but after an year of marriage) ?????????????????

I do not want to take a risk of my forst MCD motion gets rejected and want to get out of this messs asap.

Please suggest.