• Mutual consent divorce

I had filed single petition against husband on grounds of cruelty. Last month I withdrew the single petition and filed for mutual consent divorce in family court with agreements laid down on child custody and visitation rights. Now i'm not satisfied with the laid down conditions as i find that husband is manipulating my child's mind. Can i withdraw my consent for mutual divorce before 6 months and go ahead with the single petition? In that case can i redraft the single petition?
Asked 6 days ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
You are at liberty to withdraw your consent for divorce by mutual consent 

On your consent being withdrawn potion would be dismissed 

You have to file  fresh petition for divorce 
Ajay Sethi
Advocate, Mumbai
35154 Answers
1949 Consultations

5.0 on 5.0

Yes you can withdraw the mutual divorce petition before the second motion, and then you can file a contested divorce case.

Regards
Anilesh Tewari
Advocate, New Delhi
1823 Answers
17 Consultations

5.0 on 5.0

The expression 'mutual' cannot be diluted and if any of the parties to the marriage fail to present herself or himself before the court, after the presentation of the 1 st and the 2nd motion petitions, then there will not be any mutuality in the act of the parties. Mere signing and filing of the present petition by both the parties does not mean that the parties need not present themselves before the court after filing the divorce petition. The parties are necessarily required to appear before the court to give their statements and then based on the statements and upon satisfaction of the Court, first motion petition will be allowed. A close reading of section 13-B of the Hindu Marriage Act, 1955, makes it amply clear that a divorce by mutual consent can be granted only if both the parties appear voluntarily on the First motion as well as on the Second motion.

If you are delaying to give a statement or appear before the court, under such circumstances neither your husband  nor the court can compel you to appear and make a statement. However, at this stage your husband can only take an adjournment till 18 months (maximum) .

So you can withdrawn your consent and can file divorce on the ground of cruelty. But think the only ultimate aim is to get the relief is Divorce. If you have objection in agreement then better you call his advocate or him and express your objection and if possible change the agreement and proceed the mutual divorce petition. 
Ajay N S
Advocate, Ernakulam
2442 Answers
28 Consultations

5.0 on 5.0

1. The consent of mutual divorce can be withdrawn by either of the aprties at any time before the final motion.
2. Once it is withdrawn you can file fresh mutual divorce petition containing amended terms and conditions.
3.Do note that not all future contingencies can be mentioned in the agreement and hence whatever you mention there can always be chance of dispute.
Devajyoti Barman
Advocate, Kolkata
9374 Answers
113 Consultations

5.0 on 5.0

1. If you do not want the marriage to be dissolved on the terms laid out in the mutual consent divorce petition then you may abstain from appearing in the court, which will ensure the dismissal of MCD petition.

2. In MCD unless both spouses appear on the second motion to reiterate their consent the court cannot dissolve the marriage. 

3. However, as you had withdrawn the divorce petition you cannot reactivate it as it is not pending on the file of the court anymore. This does not stop you though from filing a fresh petition for divorce.
Ashish Davessar
Advocate, Jaipur
21327 Answers
571 Consultations

5.0 on 5.0

Yes, you have right to withdraw your consent and mutual consent petition after filing the application before the court if matter is pending, file a contested divorce  based on cruelty U/s 13(1)(ia) of Hindu Marriage Act-1955.

There is no compulsion over the parties to go for Mutual divorce.


Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
4293 Answers
188 Consultations

4.9 on 5.0

You can place an application before the court for withdrawal of your consent on the ground that such terms were not made clear to you and the signature were taken with undue influence. You may just refer to the following judgment for indepth study of the matter:

https://drive.google.com/file/d/0BzXilfcxe7yuZEJDYmY4UVVuNFk/view

Regards 
Anilesh Tewari
Advocate, New Delhi
1823 Answers
17 Consultations

5.0 on 5.0

You can withdraw your mutual consent divorce petition on grounds that you want to save your marriage and do not want divorce 
Ajay Sethi
Advocate, Mumbai
35154 Answers
1949 Consultations

5.0 on 5.0

Your presence is important for second motion. If you are not presence at the time of calling of case in second motion,then  the court will not consider the mutual divorce petition for dispose. The court can consider on merit if both parties are present at the second motion time. Court can kept the case up to 18 months. After 18 months court will reject the petition due to non appearance of parties. 
Ajay N S
Advocate, Ernakulam
2442 Answers
28 Consultations

5.0 on 5.0

You can withdraw the mutual consent divorce petition during the second motion and can file a contested divorce at the later stage.
There is no legal infirmity in it.
T Kalaiselvan
Advocate, Vellore
25086 Answers
247 Consultations

5.0 on 5.0

For withdrawal you need not mention any reason.
You may inform the court of your decision to withdraw the mutual consent divorce at the later point too.
The withdrawal of consent petition may be filed on the date of hearing of the second motion.
T Kalaiselvan
Advocate, Vellore
25086 Answers
247 Consultations

5.0 on 5.0

1. You do not have to go to court to withdraw it. Your non appearance will merit the dismissal of MCD petition.

2. Be that as it may, you may appear in the court and withdraw the MCD petition by stating that no provision has been made for the maintenance of you and your child.
Ashish Davessar
Advocate, Jaipur
21327 Answers
571 Consultations

5.0 on 5.0

Dear Querist
You may file an application simply that you don't want divorce on the conditions as mention in the agreement now as there is no financial security for you and the child.
no need to worry, without your consent and statement the court will not grant the mutual consent divorce.
Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
4293 Answers
188 Consultations

4.9 on 5.0

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