MPM (Er) 14 September 2013

Mutual consent divorce

Hello, I am in need of clarification regarding MCD U/S 13 (1) (B) of HMA. I got married with a girl on 25.05.2012, due to difference in attitude, thought and worst behavior of the girls and their parents finally we have separated since Jan 2013 till date. All effects are made for reconciliation has been failed and finally she filed FIR U/S 498A, 406, 3 of DP Act. While he left the matrimonial house, she left her items, even her Jewellery in matrimonial house. They are demanding for Jewellery. I replied that I shall give her all items after signing MCD petition and quashing of FIR. My question as follows i) For applying MCD One Year separation is needed? If MCD petition is applied now, whether Court can reject under this circumstances. ii) How to compromise on FIR filed against me. iii) When I can hand over her items fully. Kindly advice and guide in this matter

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T. Kalaiselvan, Advocate (Advocate) 14 September 2013

Mr. MPM,

If the marriage has taken place a year before and that both have developed difference of opinions and are living separately for a considerable time and that there are no chances for reunion between you both, you both can jointly apply for divorce on mutual consent grounds, As far as the property of your wife, you can return it any time she demands it, moreover it is her property, you cannot hold it back for your personal reasons, in case she agrees for mutual consent, ask her to withdraw the police cases against you either after filing the divorce petition or immediately after your marriage has been dissolved by a decree of divorce on mutual consent by a court of law, but it is better to have a written undertaking from her to this effect. Advocate Kalaiselvan,Vellore, Ph: +919443441062

(Guest)

1. No. MCD can only be filed after completion of one year of marriage. One year separation is not required.

2. Both parties sit and discuss. After some consensus is agreed upon, write an MOU with all the terms and conditions. Once you are successful in quashing the FIR then you can give the jewellery back to them. If you give the jewellery now, you will lose the bargaining power for alimony.

3. After the second motion of MCD, you can return their items.

PS: Whom did you reply? Don't give anything in writing with regards to jewellery.

(Guest)

i) For applying MCD One Year separation is needed?

Opinion: Not necessary , when marriage has crossed one year of duration then you both can put 13b HMA in hardship cases even within 1 year.

If MCD petition is applied now, whether Court can reject under this circumstances.

Opinion: It depends on the facts and circumstances given in the petition. Generally it been accepted if marriage has crossed one year of time frame and you both are pleading for divorce.

ii) How to compromise on FIR filed against me. iii) When I can hand over her items fully. Kindly advice and guide in this matter

Opinion: Convince her for withdrawl of cases then you will proceed for her items and alimony.Place every doubt in your MOU before signing on First Motion.

MPM (Er) 14 September 2013

Thanks for clarification

MPM (Er) 14 September 2013

some more clarification needed as follows

1. presence of both parties during second motion of MCD is mandatory?

2. if one party get absence during second motion what happen?

3. Any possible to withdraw the petition by any one of the party, if possible then what happen?

rajiv_lodha (zz) 14 September 2013

1. presence of both parties during second motion of MCD is mandatory?

Ans: Yes

2. if one party get absence during second motion what happen?

Ans: Judge wil see what is the reason on record for 2nd party's absence. MCD porcess may be lengthened till 18 momths post-1st motion if court sees some reason

3. Any possible to withdraw the petition by any one of the party, if possible then what happen?

Ans: Yes, u r free 2 withdraw the consent. Rest depends in MoU terms & conditions.