Abhi_Mechanical (Mechanical Engineer) 16 August 2015

Require help regarding mcd or ex party divorce

Hi AlL,

I have filed divorce case 10 months back. Now I'm wife ready for MCD. We are not living together since last one year. Now my advocate told me that file MCD case give refrenace of divorce case which you file 10 months back. You will get divorce easily within a month. You need to go through 6 month reconciliation period.

Please let me know is it correct or wrong ?.. Because my advocate told me that you get divorce within one month after filling MCD and no need to go though reconciliation period because you already filed divorce case 10 months back and you both are living separately since last one year. You will get divorce easily.

But as per law :-

The Conditions required under section 13B of the Hindu Marriage Act are as follows: (i) Husband and wife have been living separately for a period of one year or more, (ii) That they are unable to live together, (iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved.

How does it work:

In all there are two court appearances in a mutual divorce a. First A joint petition signed by both parties is filed in court . b. Secondly In the first motion statement of both parties are recorded and then signed on paper before the Hon'ble Court. c. Thirdly The 6 month period is given for reconciliation, (the hon'ble court gives a chance to the couple to change their mind) d. Fourthly 6 months after the first motion or at the end of the reconcile period if both parties still don't agree to come together. Then the parties may appear for the second motion for the final hearing. d. Finally Divorce decree will be granted as the Hon'ble Court may deem fit.

Please let me know whether we are on right track or not. Please let me know when I and my wife can second marriage after MCD. Also I have one more question that she didn't appear inside court after filing divorce case because summons is not served. Now e have both option either go with ex-party divorce and MCD.

Please let me know best option and also let me know will court give decree by consider case which files 10 months ago and we are living separately since last one year.

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4 Replies

ROHIT SHARMA (Legal Advisor ) 16 August 2015

(1) You say that the summons in the divorce matter are not served or ist it that you mean that the summons have not been issued ?

(2). The advice of your advocate is feasible if amnedment of the palint can be effectuated. Still I doubt whether the requirement u/s 13-B can be dispensed with. The procedural laws u/s 13-B need to be followed. The time of 10 month cannot be accounted as the cooling time period.