• Judicial separation under Section 13A of HMA

Dear Experts,

Wife is adamant that she will not give divorce. Divorce filed by husband on grounds of cruelty under sec 13 of HMA. Currently case is under mediation cell of High Court (due to Appeal filed by Husband in high court against interim maintenance order of maintenance passed by session court under sec 24 of HMA)

Mediation cell of High Court suggesting JUDICIAL SEPARATION under sec 13A of HMA with payment of one time Lumpsum amount of Alimony and with terms and conditions that there will be no future financial claim of wife from husband nor she will file any dowry harrasement or Domestic violence case.

There is one son out of wedlock, who is currently with wife

Questions on which legal advice is needed are as under:

1)	Is Memoranda of Understanding (MOU) legally acceptable in case of Judicial Separation and will it effectively and legally bar wife from breaking the conditions mutually agreed and signed by both of them.

2)	Can she later on file appeal in Supreme court on any condition earlier agreed by her on MOU.
 
3)	a) Can husband pay one time full and final negotiated alimony amount acceptable to wife for her and the child with condition that wife will have no rights to ask for maintenance again in future under any other act, nor there is any pending Istridhan of her with husband, and she will not have any claim in assets/property of her husband in future.

b) Can such payment with conditions shield husband from any future financial battles with wife

4)	a) Can husband put condition in MOU that there is no Istridhan of her pending with in Laws and she will not file any case of Dowry Harrasement or Domestic Violence or 498 A after signing of this MOU.

b) Can such condition shield husband and his parents from false criminal cases.

5)	Can husband ask for visitation rights as part of MOU, if wife does not agree to give custody of child to husband.

6)	Can husband file custody case for child later on

7)	Can wife file any property case on husband or his father through her son after he attains age of 18, if there is no ancestral property and all property belongs to husband's father only.

8)	Is there any other disadvantage of Judicial Separation vis-à-vis Divorce other than that remarriage is not possible.

9)	a) If after 1 year of Judicial separation husband file for divorce under section 13 1-A(i) of HMA on basis of no cohabitation after Judicial separation, can wife oppose it on any grounds. What are conditions and chances of success of such case.

b) If Divorce is granted to husband after 1 year of Judicial separation under sec 13 1-A(i), can  wife again ask for any money from husband under any provision of law, keeping in view that she had already taken full and final settlement and maintenance amount for her entire life earlier at time of Judicial Separation.

10)	What precautions should be taken by husband while drafting MOU for Judicial Separation to avoid any claims or legal troubles from wife in future.

11)	Can MOU become part of High Court Order itself.

Regards,
Asked 2 years ago in Family Law from Amritsar, Punjab
Religion: Sikh
1. Judicial separation is a colossal wastage of time, energy and money. It inevitably leads to filing of divorce. If the wife specifically agrees to not to claim, subsequent to the execution of MOU, any financial support from her husband, there will be an embargo on her right to bring a legal action to the contrary. The terms of MOU will rank sacrosanct.

2. No appeal would lie to the SC once the MOU is executed by her. 

3 a) One time settlement can be made, pursuant to which the spouses may file for mutual divorce. 

b) Since the one time settlement would be evidenced by a MOU the settlement would be final.

4. While executing a MOU the parties thereto have the liberty and latitude to incorporate any condition which is mutual acceptable.

5. If the wife is willing to allow visitation rights to the husband then such a condition can be made a part of MOU, else the husband can file a case for child custody. 

6. If the issue relating to visitation is settled by MOU the husband will not be able to file a case for child custody later on.
 
7. The son has no rights in the property owned by his grand father. So he cannot seek any share therein. However, he does have an indefeasible right in the ancestral property, which he can cull out by moving to court.

8. There is no disadvantage of Judicial Separation. It is purposefully designed to make the marriage work.

9. Wife can indubitably oppose divorce if sought on the ground of non-resumption of cohabitation. The success or failure of a legal proceeding depends on the case set up, the proof submitted and how it is presented in the court. 

Wife will be precluded from seeking further amount under any provision of law in view of MOU.

10. Get a flawless MOU drafted by a lawyer. That's all we can suggest.

11. MOU can be made a part of High Court order.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1) although terms of MOU are sacrosanct and once wife has agreed to claim one time settlement she cannot ordinarily claim further amounts from husband . but if there is change in circumstances wife can make claim 

2)once wife has signed MOu of her free consent it would be binding upon her . no appeal would lie 

3)husband can make one time payment of alimony . it would ordinarily be binding upon wife . 

4)husband can incorporate clause that wife wont file any further criminal case like 498A / DV 

5)visitation rights clause can be incorporated in MOU 

6)husband can file child custody case later but it wont be granted as he has sought only visitation rights under MOU 

7)grandson has no rights on self acquired property of grand father . no reliefs would be granted 

8)advisable to settle for judicial separation .

9)husband can file for divorce on grounds that they have stayed separate for 1 year after judicial separation . wife may oppose divorce but court may grant divorce . 

10)get MOU drafted by local lawyer

11) MOU can form part of court order
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. No, it can be conveniently breached by wife in respect of terms of alimony.
2. Yes, she can but under certain circumstances.
3.Such term is not legally enforceable.
4.No, agreement in restraint of legal proceeding is void or non -enforceable.
5. Yes, visitation can be agreed upon but again it can be breached if wife so wishes.
6.yes
7.yes
8.No advantage nor disadvantage either.
9. Success rate is good though the wife can oppose such prayer.
b. Alimony can again be claimed.
10 No foolproof MOU is there to get protection from alimony.
11.Not exactly but court can pass final order on its basis.
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
4.9 on 5.0
Hi, MOU entered into between the parties be binding on them provide it has to accepted before the court  and all the above conditions may be put it in writing provided it has to be agreed by the other party and for claim of property by son as his right you cannot curtial his right by way of MOU.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. I am not confortable with the proposal of judicial seperation in place of decree of divorce. However, she can refuse to comply with the terms later on,

2. Yes, she certainly can approach the Apex court,

3. You can not buy her liberty to sue you by paying alimony. However, she can give declaration that she has got her streedhan,

4. No. Such agreement will be considered as void in the eyes of law,

5. No. As stated in the above paragraph, you can not buy her right to sue you by paying alimony. However, she can give declaration that there is no nstreedhan or there was no violance committed on you and/or she has no complaint/allegation against you. There is no vaccination against futire false cases to be lodged by wife,

6. Yes, the husband can file an application for visitation right,

7. Yes, the husband can file a child custody case,

8. Neither wife nor child has any right on the properties of father in law/grand father of husband/father during their life time. The wife and the son can claim shgare of their husband's.father's property after his demise,

9. Divorce is total termination of matrimonial relationship,

10.a. yes, you can file and the wife can oppose,
b. she can claim and you shall have to contest such claim,

11. Engage a local lawyer having expertise in this field,

12. No. your MOU wuill not become part of High Court order but tthere can be a mention of the said MOU in the order and the order also can be based on the said MOU.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
(i)	If you are ready to settle the matter amicably why not both of you file a compromise petition with MOU. If MOU is apart of the decree both parties bound to obey the MOU.

(ii)	Mediation cell is one of the speedy disposal methods for the end of long pending litigations, 

(iii)	If any of the person can withdrawn from MOU if they have a strong ground for that like undue influence  

(iv)	Dowry Harassment or 498 A are not attracted in future.

(v)	Yes, you can file petition for child custody, visitation rights under Guardians and Wards Act, and 1890 any time.

(vi)	Your son can claim share over your property only after your demise.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0

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