What about the important point regarding the MoU and a draft of the MoU ?-------------
For that, wait for part 5 – the final in this series. But first, you understand the contents of part 4, here.--------
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Question : Is it then not true that a divorce proceeding and a complaint against spouse run parallel to each
other and therefore a complaint has to be registered against the spouse, if it is filed at the police station or
court ?
Answer : Yes, it is true. But such a complaint filed during the proceeding is considered pre-meditated and
criminally chalked out strategy to harass the spouse. Such complaints usually are very weak and do not hold
water in the eyes of the law. It is most likely to be treated as untenable (the complaint cannot be
maintained and held against the spouse).
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Question : But earlier, you said, during a divorce proceeding, a complaint cannot be filed since the matter is
sub-judice. You also said that additions/ addendum can be made to FIRs but not to divorce matters already
listed in court.
Answer : Yes, that holds good in a mutual consent divorce. When you discuss with your advocate, use the
term “ CAUSE OF ACTION “…. Your advocate will understand.
WHY POLICE COMPLAINT ? UNDERSTAND THAT IN THE FIRST PLACE.
In a way, A POLICE COMPLAINT IS BASICALLY A NOTE PUT UP TO THE COURT that THE MATTER HAS
BEEN BROUGHT TO THE NOTICE OF THE LAW AND ORDER MECHANISM OF THE STATE, BY THE
COMPLAINANT.
This means the LAW HAS BEEN SET INTO MOTION.
You must understand that a wafer-thin line exists between a regular divorce and mutual consent divorce.
Yes, both are fruits, but one is the apple and the other is the orange.
AMENDMENT / APPENDIX can be added to any matter, in any court of law, be it IN A REGULAR DIVORCE OR
MUTUAL CONSENT DIVORCE.
BUT, the ORIGINAL CAUSE OF ACTION cannot be ALTERED.
The spirit of the frame-work of law cannot be killed. You can alter the form of the law to suit the situation and in
a legally permissible manner.
But you cannot eliminate the law itself and also you cannot have the law ALIVE and DEAD
at the SAME TIME.
So, you can alter the form of the silencer of your vehicle, depending on whether you intend to have it at a rally
or on the main road for regular use. But you cannot eliminate the silencer itself, from the vehicle.
Also you cannot have a vehicle which has the silencer but still does not have the silencer.
You cannot say you are speaking and silent at the same time.
Either you are speaking or you are silent, at any given point in time.
You can do only one at a given point in time. You cannot do both.
Similarly, you can either go in for regular divorce or mutual consent divorce but you cannot have both at
the same time.
You cannot create mutually contradictory positions of a divorce by attempting to have the features
of a regular divorce accommodated within the features of a mutual consent divorce.
So, while a MCD is opted for and when the matter is sub-judice, a fresh complaint cannot be
registered and should not be registered by the Police or the Court. It amounts to contempt of court.
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Now, let us see this point to understand better.
What was the cause of the action of divorce being initiated ?
In a regular divorce, the cause is listed and the doors are kept open for arguments, counter-statements,
replies,…etc.
Usually, Allegations of abuse, torture, cruelty,…etc ARE ALL CLUBBED AS THE CAUSE OF
ACTION that necessitates a Divorce.
But in a mutual consent divorce, the cause is a SINGLE TITLE “ IRRETRIEVABLE COLLAPSE OF THE
MARRIAGE and IRREPAIRABLE “.
There are no charges and counter-charges.
Also, in a mutual consent divorce, there are no arguments, no counter-statements, no replies,…etc.
Basically, you may say it is a closed door proceeding. No New entry can be made.
Matter taken up, confirmation sought from both parties, decree granted and case closed.
In a regular divorce petition, there is an ELEMENT OF COMPROMISE that might exist unseen.
In a mutual consent divorce, the ELEMENT OF COMPROMISE DOES NOT EXIST AT ALL.
Matters are clear.
The point is clear " we did not find each other compatible.
we want to separate and move on our individual paths. "
So, as the name itself is clear, it is mutual consent.
No arguments, no counter-statements, no replies,…etc.
COUPLE TRIED LIVING TOGETHER, PASSED THROUGH THE MINIMUM CO-HABITATION PERIOD OF ONE
YEAR STIPULATED BY THE LAW, TRIED TO PASS THROUGH THE WEAR AND TEAR OF MARRIED LIFE,
BUT THE COMPATIBILITY BETWEEN HUSBAND AND WIFE DID NOT MATERIALIZE AND HENCE MUTUALLY
THEY DECIDE THAT THEY ARE NOT A MADE-FOR-EACH-OTHER PAIR AND HENCE DECIDE TO SEPARATE
AND MOVE THEIR OWN WAYS.
Hence, divorce by mutual consent.
If there are complaints, charges and counter-charges and cases, it has to come through the channel of
regular divorce and not through the channel of mutual consent divorce.
As mentioned earlier, The spirit of the
frame-work of law cannot be killed.
