Dear Querist

My opinion on your queries are as under:-

1. Can she withdraw her consent even after second motion?

Opinion:- when the statement of parties has already been recorded before the court in Second motion of Mutual Consent Divorce then there is only left the Judgment of the Court and now she can not withdraw her consent.

2. What if she doesn't appear in court?

Opinion:- After recording the statement on second motion of mutual divorce proceedings, there is no requirement for appearance of the parties.

3. If Family court give any negative decision, Is there chance to get divorce in HC?

Opinion:- if Family Court consider her application of withdrawal of the consent then only the court pronounce the negative Order and you may file the appeal before the High Court or you may file contested divorce before family court based on cruelty U/s 13(1)(ia) of Hindu Marriage Act-1955

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1) wife can withdraw her consent before passing of divorce decree . Supreme Court has held that held that mutual consent as contemplated under Section 13-B (2) of the Hindu Marriage Act should continue until the divorce decree was passed by court.

2) the SC held From the language of this section, as well as the settled law, it is clear that one of the parties may withdraw his/her consent anytime before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties.”

2) if family court dismisses your divorce petition you can file appeal before HC

Hello,

1) The Second Motion is where the petitioners reiterate their consent for divorce by filing Affidavit to that effect and terms of consent if any and usually, the court passes an order on the same date after verifying the documents and and consent of the parties.

2) Therefore from what you have enquired it appears that you have had a second date in the court where your wife withdraw her application regarding "Withdraw consent". However it appears that the process of filing Affidavit in evidence to reaffirm the consent was not fulfilled

3) The fact is that in a petition for divorce by mutual consent, either of the party can withdraw by either making an application or otherwise any time before the divorce is decreed.Therefore if she does not appear in court, the court can not hold the petition beyond 18 months from the time of filing of the petition and so will be compelled to dismiss the petition for want of statutory copliance.

4) You have no remedy to go before the High Court against the order of dismissal. Your option is to file a unilateral petition for divorce before the same court narrating all that happened on grounds of cruelty.

1. Yes, she can withdraw her consent for the MCD on the day of the 2nd motion.

2. If she does not appear before the Court on the day of the 2nd motion then the matter will be adjourned to the nest date and if she never appears for te second motion on any of the adjourned dates, the MCD petition jointly filed by both of you shall be rejected after 18 months from the date of its filing.

3. Then family court will reject the MCD petition as stated above. You can not go to High Court for the rejection of the MCD for the fact that your wife refused to appear before the Court after the cooling period.

1. On the day of the second motion, the Court asks both the parties whether they still want divorce or not. If both of them say yes, then decree of divorce is pronounced. there is no need for filing application for withdrawing the consent. Mere absence or verbal statement that 'I do not want divorce ' is enough for the Court to reject the MCD petition.

2. However, the MCD petition will be rejected with in 18 months from the date of its filing if one of the parties abstains from appearing before the Court on the day of the second motion.

1. Anytime before the divorce has been granted (pronounced by the court), she is free to withdraw her consent.

2. If she does not appears, the court will keep the case pending.

3. Yes.

Mutual consent divorce wife can Withdraw her consent before passing of decree hence she can withdraw her consent even after the second motion.

Mutual consent divorce is like a Contract. A contract cannot be enforced without consent of the both parties. in devoid of consent of a party a contract cannot be executed. Therefore Court cannot pass a decree of divorce under section 13b of the Hindu Marriage Act if wife retracted her consent

My questions are

1. Can she withdraw her consent even after second motion?

You have stated that " Before second motion wife filed application to withdraw consent."

But again stated that she appeared before the court and " During second motion she mention in her affidavit that she don't want maintenance money. We appeared before Judge and second motion along with her statement recorded."

Your statements are contrary to each other.

If she has already filed an affidavit confirming her decision to the mutual consent divorce, then there is no question of appearing before court on subsequent dates. In fact the court will decide based on the affidavit filed in the second motion and there wont be any hearing subsequently.

2. What if she doesn't appear in court?

Since she has confirmed her decision for mutual consent divorce, the court may grant divorce until and unless she again appears and withdraws her consent.

3. If Family court give any negative decision, Is there chance to get divorce in HC?

If the divorce case is dismissed you can apply afresh a divorce case on the grounds of cruelty before the same family court.

You can file for quashing in HC based on consent terms filed in MCD petition

1. You should have incorporated the condition for compromise/settlement of 498a in lieu of grating consent for MCD. If not, include the same now.

2. On the basis of grant of MCD under the mutually agreed terms and conditions, 498a will be easily quashed by the court .

It is advised that you get the terms amended and get the things like withdrawing of cases on record.

Approaching the HC again will be a lengthy and tiresome process.

If the same is included now the other cases filed will be disposed off easily and quickly.

Regards

During second motion she withdraw her application regarding "Withdraw consent".

It is her right to take a decision on the subject.

You cannot force her to continue with the decision to go for mutual consent divorce as agreed earlier.

If she withdraws her consent during the second motion you can immediately file a contested divorce petition on the grounds of mental cruelty citing this withdrawal as one more reason besides other grounds you rely upon.

In MCD nothing is mention for cases which are pending like 498A.

You should have made sure that the clause is included in it or at least a separate MOU should have been got agreed between both on all such pending issues.

If I get MCD, Can i go ahead alone in HC for quashing? What are chances to win 498A quashing?

You can file a quash petition before high court but the divorce decree alone is not the reason for quashing the 498a case, the court may send her a notice to give her objection or willingness to quash the petition filed by you.

She can file an affidavit before the court stating that she is agreeing to quash the case.

The court may consider both the issues and then decide after that.

1. No. 498A case can be filed even after getting MCD decree as both are not interconnected at all.

2. It is customary to mention in he MCD petition that 498A case will be helped to be quashed by the wife since it can not be withdrawn by her.

3. The ideal step will be to get her affirm under affidavit tat she had lodged the said police complaint under domestic rage which has now been settled and she does not have any further grudge on you.

4.Based on the said affidavit, quash petition can be filed that too after charge sheet is filed by the police.