• Query on divorce

My wife and I have been going through martial problems from the very start of our marriage which was 3 years back. In the month of October last year she filed 2 cases - one for divorce and other under section 498A. However, later with intervention of the family we agreed for a mutual consent divorce on a condition that both the existing cases will be withdrawn by the girls party. A petition with regards to mutual consent divorce was filed in January'18. We later came to know that, at the time of filing the mutual consent petition both the earlier cases were still live and were taken back only in march'18. 
We had handed over all the jeweler and gifts given by the girls family to the mediator and it was agreed that it would be returned to the girls family along with a lump-sum settlement amount of 15 lac once the final divorce process is done. However, under the pressure by the girls family, the mediator handed over the jeweler and gifts to the girls family immediately after the filing of petition, and is creating unnecessary pressure on us to pay 15 lacs also before the final process of divorce.

Seek advice from you on the below:

1. can a mutual consent divorce petition be filed, when the case under 498A and divorce is still live. If not, in that case what should we do now?? Can we inform the court on this and get the mutual consent petition revoked??
2. mediator handed over the jewelery and gifts against our will and against the terms of mutual consent agreement. What can we do on this issue. CAn we raise a complaint for this.
3. after these 2 incidents we are really under the pressure and now want to contest our case. We don't want to fall under their trap even though when we have not done anything wrong. The girl herself is working and is earning equal to me. What should be our course of action now??? 
4. CAn we withdraw mutual consent petition??
5. can they once again file a case under 498A if we decide to withdraw the mutual consent petition??
6. what is the process to withdraw the mutual consent petition.
Asked 4 years ago in Family Law
Religion: Hindu

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13 Answers

Existing petition for divorce has to be converted into divorce by mutual consent

2) you cannot file fresh petition for divorce by mutual consent unless existing divorce petition is withdrawn

3) file police complaint against mediator under section 406 of IPC for criminal breach of trust

4) don’t withdraw your consent for MCD . Let divorce decree be passed and hand over Rs 15 lakhs to your wife as agreed

5) since gifts and jewellery is already handed over it does not make sense to withdraw your consent

Ajay Sethi
Advocate, Mumbai
87894 Answers
6207 Consultations

5.0 on 5.0

1. Yes, even during the pendency of the criminal cases MCD can be filed but before the final motion or soon thereafter the criminal case is to be withdrawn. However either of the parties can before the final motion can withdraw their consent even without citing any reason.

2. If the same was done without your consent then the actions of the mediator is impermissible and hence you cna lodge complaint against this mediator.

3. Yes, you should rightly withdraw your consent and contest the cases on merit.

4. Yes at any point of time before the final motion.

5. No second 498A case can be filed.

6. Fiel a petition withdrawing your cosnent. That is all.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. Mutual consent divorce hjs nothing to do with th pending 498a case.

The 498a case is not compoundable hence only quash petition can be filed before high court seeking to quash the same on the basis of the mutual consent divorce.

If you do not ant the mutual consent case to be continued then you can appear before the court on the date of hearing and withdraw your consent without assigning any reasons.

2. The jewels and gifts belonged to her and it becomes her stridhan so any complaint in this regard will not be maintainable.

3. You dont agree to settle the amount as agreed earlier, you can withdraw the consent in th MCD and file a contested divorce case.

Let she seek maintenance or alimony, that can be rejected on the basis of her employment status.

4. Yes, you can decide about it

5. No they will continue the same

6. Appear before the court and express the same orally, the court will ask you to make an endorsement to this effect on the petition.

T Kalaiselvan
Advocate, Vellore
78048 Answers
1543 Consultations

5.0 on 5.0

1. MCD and 498A complaint case are two different cases to be treated independently. FIR registered u/s498A of IPC can not be taken back by the complainant since section 498A of IPC is non compoundable. She shall have to execute an affidavit affirming that she had lodged the said police complaint out of domestic rage which has now been settled and both of you have agreed to avail decree of divorce based on the MCD petition jointly filed by both of you. Thereafter you shall have to follow up with the police to expedite their filing the charge sheet. Finally you shall have to file a petition before the High court u/s482 of Cr.P.C. praying for quashing the FIR based on the affidavit affirmed by your wife and at the time of hearing, your wife should be present to depose in support of her said affidavit, if questioned by the Judge. Without getting the 498A FIR quashed, you should not pay any amount now.

2. There is no agreement with the mediator laying down his code of conduct for which you can not complaint against hi. Actually, you should have mentioned in the MCD petition itself that the jewelry and the amount decided to be paid will be deposited with the Court. In any case you can not hold her streedhan under any circumstances for which there can be no legal agitation from your side as of now. Deposit the DD before the Court only to be given to her only after the MCD is decreed.

3. If you have not done anything wrong and if she is earning then why have you asked for MCD and not contested her allegation made in the divorce petition while agreeing for the divorce prayed therein? You have returned her all her Streedhan which is absolutely as per law. Now ask for plain MCD without paying any money. If she does not agree then file a divorce suit by yourself (since she has already withdrawn her divorce suit) and contest the 498A case registered against you fittingly. Statistics prove that 94% 498A cases filed againjst husbands get dismissed.

4. You can withdraw the MCD petition if she does not agree with your proposal that she shall have to execute the affidavit for quashing the 498A FIR registered against you as suggested above and then agree for MCD with out claiming any money from you.

5. 498A FIR has not yet been withdrawn since this section is non compoundable, hence can not be withdrawn. You shall have to get it quashed taking the steps suggested above. She can not lodge another 498A complaint since you are staying separately now.

6. If you just do not appear on the next day i.e. day of the 2nd motion, it will be postponed and another date of hearing will be given by the Court and it will continue for 18 months from the date of its filing after which it will be rejected/dismissed for default.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1) Now if you dont want to be get in the trap of 498a and other section cases.

2) first you file new case now for RCR so this will protect you and your family from rest of the future trap.

3) later on ask them to talk on mutual consent divorce, here you don't pay a single penny to her as she is working women and secondly she will be not entitled for alimony as well.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Hi

1. Yes mutual consent can be filed with the 498A on. Urge the mediator to ask the girl family to go for 498A FIR cancellation. 498A will not be withdrawn, that FIR will be quashed by high court or will be cancelled by SP.

2. I would suggest you to let go everything and achieve your main motive of DIVORCE. Raising complaint will only waste your time.

3. Continue for mutual consent and achieve it. Don't divert your mind now. Think of future. If you will again choose to contest the cases you will waste a lot of time and money.

4. Yes you can. But I would suggest not to withdraw.

5. As you said they have not withdrawn the 498A case then why will they need to file it AGAIN.

6. Just don't appear for the second motion statement.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

Dear Sir,

My answers are as follows:

1. can a mutual consent divorce petition be filed, when the case under 498A and divorce is still live. If not, in that case what should we do now?? Can we inform the court on this and get the mutual consent petition revoked??

Ans: Ask the wife to give consent before high court to quash the proceedings of 498A before you proceed to pay remaining amount.

2. mediator handed over the jewelery and gifts against our will and against the terms of mutual consent agreement. What can we do on this issue. CAn we raise a complaint for this.

Ans: You must inform the Court.

3. after these 2 incidents we are really under the pressure and now want to contest our case. We don't want to fall under their trap even though when we have not done anything wrong. The girl herself is working and is earning equal to me. What should be our course of action now???

Ans: Nothing will happen but the only issue is time factor and mental torture.

4. Can we withdraw mutual consent petition??

Ans: yes, you can by showing the conduct of the girl and mediator.

5. can they once again file a case under 498A if we decide to withdraw the mutual consent petition??

Ans: No, it cannot stand.

6. what is the process to withdraw the mutual consent petition.

Ans: Just file a memo through your advocate stating that under given circumstances you are not going to proceed with the Mutual Divorce. The recent judgment on this point is as follows:

==================================================================================

Parties can withdraw Consent for Divorce once granted, at any time before passing a Decree; Allahabad HC [Read Judgment]...

Allahabad High Court recently held that parties may withdraw their consent once granted for Divorce by mutual consent, at any time before the passing of the decree. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six months they again attorn their consent before the Court....

mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six months they again attorn their consent before the Court....

The Court has considered the issue as to whether consent given at the initial stage for divorce can be withdrawn at the later. Relying on various Supreme Court Judgments, Justice Ram Surat Ram (Maurya) held that if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent.

======================================================================================

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. Yes the mutual divorce and 498a can go hand in hand. You can make a settlement agreement in which she can agree to withdraw case and the amount and the jewellery can also be mentioned in it. Also you can withdraw the consent any time before second motion or on second motion if cases are not withdrawn.

2. If you have already made an agreement and he handed over see there won't be any benifit of complaint as stridhan is her and she can file a 406ipc for that also she has taken that that is not issue because any way she can take that its her sole right.

3. See I won't advise you to contest as it's long and difficult procedure and it will anyway hardship.and you have to pay legal fee and time rather then that you can complete it and start your life. Further there is no point in contesting when both want divorce just make an settlement agreement and file a quashing petition before high court as 498a cannot be withdrawn present settlement agreement and high court shall quash it.

4. Yes you can withdraw it any time you want.

5. If case is quashed or withdrawn on settlement she can file it under separate contenious cause of action better get a divorce and let these things over soon.

6. Present an application before family court before or on second motion that you want to withdrawn your consent from mutual divorce the family court shall order accordingly.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firstly, if the case of 498A is already been filed in that case you can only go for the mutual if you promise to withdraw the same case.

Secondly, no you can’t if everything has been recorded in your presence and you didn’t object at that time.

Thirdly, nobthey cannot file the same if once withdraw.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Hi,

The return of jewellery and gift is ok to win the confidence and the case of 498a will be addressed in the decision to be withdrawn.

The decision of quitting MCD may be excersised any time before the decree by any party.

You can say for the payment of alimony the amount will be paid by the DD on the day of decree and you may provide the copy of DD made for the amount to win the confidence.

Your advocate may file application to withdraw the consent.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Dear Querist

My opinion on your queries are as under:-

1. can a mutual consent divorce petition be filed, when the case under 498A and divorce is still live. If not, in that case, what should we do now?? Can we inform the court on this and get the mutual consent petition revoked??

Opinion:-Mutual Consent Divorce can be filed with the terms and conditions of both the parties but it will be better if all the cases should be withdrawn or finished as the parties mutually agree for mutual consent divorce.

2. mediator handed over the jewelry and gifts against our will and against the terms of a mutual consent agreement. What can we do on this issue? CAn we raise a complaint for this?

Opinion:- You may file an application before the concerned court or in charge of the mediation and raise objections and execute the mutual consent divorce agreement again.

3. after these 2 incidents we are really under the pressure and now want to contest our case. We don't want to fall under their trap even though when we have not done anything wrong. The girl herself is working and is earning equal to me. What should be our course of action now???

Opinion:- No need to worry, at any time of the case, you may withdraw your consent for mutual consent divorce and fight the cases on merit. there is no compulsion to obey the terms and conditions of the mediation if you are not ready to accept that. Again execute the agreement with your terms and condition which should be reasonable.

4. CAn we withdraw mutual consent petition??

Opinion:- Yes, you may, at any time of the final judgment of the case.

5. can they once again file a case under 498A if we decide to withdraw the mutual consent petition??

Opinion:- They may be.

6. what is the process to withdraw the mutual consent petition.

Opinion:- File an application under section 151 of CPC, before the Family Court where the Mutual Consent Divorce Proceedings are pending regarding the withdrawal of your consent for MCD.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

1. Yes, it can be continued during the pendency of 498a and Divorce. As long as her undertaking is there to withdraw the same, it is not a cause of worry. You have the option of delaying the MCD Petition till 18 months till all compliance is done.

2. Depends on whether you want to drag the issue further or put an end to the acrimony once and for all. Did the mediator obtain their signature on receipt of the jewellery or not? If not, obtain from him in writing that he has handed it over.

3. Dont overflow with emotions as this may cost you dearly. Though you may have done nothing wrong, the legal system in India is so skewed that it will be years and years before you get any justice.

4. You can if you want to. However i would advise you to have a joint meeting with the other side before jumping to any hasty decisions.

5. Yes, i dont see any reason why they cannot.

6. You will have to file an Application to withdraw your consent and state the reasons for the same.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

1. Yes it can be filed.

2.yes you can raise a Complaint in court.

3. Contest the case in merits.

4. Yes.

5.Once they have filed the same cannot be filed again if filed will not have weightage.

6. Application in the concerned court.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

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