• Divorce on mutual consent and affidavit

We got married on 18th Jan 2017 at Ahmedabad and my wife wanted to go to see her parents and said that she is home sick and could not wait more. She is from Nashik and her brother came to pick her up on 2nd April 2017. There was no fight/disagreement/anything unusual. 

After going there, my in-laws called me on 21st April 2017 that they are not willing to send my wife back and want to end the marriage because she cannot adjust with us anymore. She did not tell me anything when she was here.

I went to Nashik with my sister the very next day on 22nd April 2017 and called them to talk about what is the matter and I wish to resolve all the issues. They at first refused to talk or meet, but then we held a meeting. Things did not work out and she and my in-laws unanimously told that they are not willing to continue the marriage. I felt like I am being forced to leave the marriage.

They told that she is unhappy because she had to be home all the time, my mom has spoken harsh words on her and she has to do all the household work along with my mom (We never had a maid).

Now, all her clothes and educational certificates are with us with they are demanding along with the gifts that they have given to me or my family during the ceremony. 

1. I just want to know do we have to file an affidavit that we are mutually ending this and no one will file any case against each other and we are returning all the belongings to her before the MCD decree or should all the belongings be given at the time of MCD?

2. Suppose we notarise an affidavit and mention that no one will file any case against each other, then can she file a case after getting all her belongings? Because there is no trust or we cannot understand their intentions

3. Can affidavit be filed at Nashik instead of Ahmedabad, because my in-laws are saying that she will not travel to Ahmedabad anytime.
Asked 7 years ago in Family Law
Religion: Hindu

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8 Answers

A case has to filed in the family court under section 13 b for mutual divorce and then it eill be decreed. There is no divorce on affidavit and the same can be filed either where you two resided earlier or where the wife is residing also on your consent it can ne filed in the place where you are living.

Regards

Anilesh Tewari
Advocate, New Delhi
18090 Answers
377 Consultations

Prepare list of gifts , gold jewellery and other items . Return the articles to her and obtain her signature in presence of 2 witnesses

2) you can enter into agreement that on expiry of one year both would file for divorce by mutual consent

3) that there is no exchange pending between parties

4) that both parties would not file any case against each other . Mention alimony that has to be paid to her at time of second motion of MCD

5) agreement can be signed in Nashik

Ajay Sethi
Advocate, Mumbai
96809 Answers
7811 Consultations

1. In the MCD itself all such terms can be incorporated and for this no separate agreement need not be made or notarised.

2. However if you make separate agreement there is no harm but in either cases there is bar on filing of cases even if the agreement is made or MCD containing such terms is filed.

4. Until and unless the MCD is finally heard and disposed of such undertaking has no value.

Act accordingly.

Devajyoti Barman
Advocate, Kolkata
23198 Answers
511 Consultations

As per Hindu Marriage Act, no divorce can be granted prior to minimum one year from the date of marriage and no divorce petition can be filed before completion of one from the date of marriage. The divorce shall be obtained only from concerned family/ district court, any kind of divorce other than divorce form court is not valid. even notarized affidavits and agreement in respect of divorce are not valid. Yes you can entered a memorandum of compromise covenanting all terms and conditions of mutual consent and thereby to approach a court of law. Siad MOC must be in two original sets one for you and another for your wife. The exchange of gold, silver articles and others things must be mentioned in compromise deed and as well as petition and affidavit to be file before court. it must be mentioned that your wife shall not claim any maintenance and permanent alimony and any share in your properties in future. If both of you i.e. wife and husband are agreeing and You have to file Mutual Consent Divorce petition before concerned family court after one year from the date of marriage.

1. Yes both of you have to separately file affidavits stating that you want to take divorce on mutual consent and returning belongings and shall not claim each again vis- versa.

2. If you proceeded on the affidavit she can claim file cases even though there is affidavit. Divorce must be from court of law.

3. Divorce petition can be filed at the place of marriage, lastly resided together or presently residing jurisdictional area. Since your wife presently residing at Nasik MCD can be filed there.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

1. Everything should be in writing regarding handing over of her belongings. If still you got any doubt that she may file false cases of you have obtain an undertaking from her a Rs.100/- non judicial stamp paper stating she is not going to proceed against you and your family members. You will be secured under said documents and those are valid documents in the eye of law.

2.MOU and MOC are equal. Better to enter both MOC and take affidavit and as well as undertaking.

3. By entering MOU/ MOC and taking affidavit and undertaking and procuring signatures of her parents and relatives as witnesses you can return her belongings with a condition that she must present before family court as when required for getting divorce on mutual consent.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

You have to return wife stridhan

2) if you fail to return she will file case against st you under section 406 of IPC

3) if wife withdraws her consent for MCD you can file for contested divorce on grounds of mental

4) MOU should suffice

Ajay Sethi
Advocate, Mumbai
96809 Answers
7811 Consultations

1. Firstly you cannot file a mutual consent divorce before completion of one year of separation between you.

Any affidavit given in this regard is not binding legally and if she would go agaisnt you with a criminal complaint on the ill advise of her greedy parents or relatives, you may have to face the case through police and court.

But in terms of mutual faith, you may return all her articles and take an assurance for filing the mutual consent divorce when the right time arrives.

2. The notarised affidavit also cannot bind her legally or restrict her from going ahead if her intentions are to wreak vengeance against you.

Hence create a conducive atmosphere which would be more helpful instead of going through legal process.

3. Where do yo think that you will file this affidavit, this can be prepared and kept with the individuals only and cannot be filed before any court.

T Kalaiselvan
Advocate, Vellore
87009 Answers
2335 Consultations

1. As I have mentioned in my previous post that such agreements are not binding in law, she may proceed with any criminal complaint or DV case also, she cannot be restricted on this in the name of an agreement or affidavit.

You have to face them if the situation arises and challenge it ion the court based on merits in your side.

2. None of the items mentioned by you is a security for you.

3. You have no right to withheld all her items because they constitute as 'stridhan' it means they belong to her alone and she s the only person having full rights in it.

You have to return it at any cost and cannot escape or avoid returning them.

Therefore do not take risk by thinking too much of it, better return them with an acknowledgment so that she do not reclaim it even after receiving them.

T Kalaiselvan
Advocate, Vellore
87009 Answers
2335 Consultations

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