We got married in June 2010. Thereafter we had severe differences in six months and since from March 2011 onwards we are living separate. She is living at her maternal home. After 3 years and 8 months of living separate wife have filed for divorce by mutual consent at Thane family court in November 2014 completing the First motion with both of ours physical presence in court. Second Motion date is scheduled in April 2015. I would be unable to be physically present in court for Second Motion as in March 2015, I am moving out of India for 2-3 months and my stay there may get extented further. Wife would be present in court physically. So, To avoid delay In this case: 1. Can I give them my consent letter/Affadavit (one month before Second Motion date) legally stating my no objection to go ahead with Second Motion and I would be present through video conference on actual date which is scheduled one month later? 2. Can I give Power of Attorney to someone to sign for me on actual date and I would be virtually present on video conference.? 3. Any other option available? Even though video conference facility is not available in Thane Family court, wife can arrange it through personnel laptop. Thanks..
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1) on said date file consent affidavit . it has to be attested by indian consulate
2) you can give POA to your father or mother to appear on your behalf
3) your lawyer can take his laptop and through skype you can furnish your consent for divorce . judge would ask you whether said affidavit has been signed by you or not
4) divorce would be granted by mutual consent
1. Prior to the actual date of hearing you can get an affidavit attested by the Indian consulate. This affidavit can then be filed in the court on the date of hearing.
2. It is the prerogative of the court to accept or reject the affidavit.
3. You are free to execute a POA in favour of any of your relatives.
4. Apply for video conferencing. The absence of the necessary infrastructure for video conferencing in the court house does not stop you or your parents from providing one through your laptop.
Well, though the supreme court allowed the recording of evidence in a criminal case via video conferencing it depends on the discretion of the family court whether to allow it in divorce matter.
In the face of lot of frauds in divorce case the courts are very cautious in mutual divorce matters and rarely allows such cases to be heard through video conferencing.
However for it you have to get the affidavit attested through foreign consulate and then file application for video conferencing.
Hi,
1. This application has to be moved by your lawyer, however such instances, court will ask you whether you can appear after another one year this means you have time to be present in the court 18 months from the filing of the petition.
2. Video conferencing is allowed in the examination in special cases in contested divorce but in mutual consent divorce it has been recently very strict due to the risk involved of false representation of parties and fraud.
3. An affidavit cannot be filed before 6 months, the presence of both parties are necessary and no power of attorney allowed in mutual consent divorce. The mandatory period of 6 months is not waived off in normal cases
4. Either you have to be present in the court on the date or else your advocate should move an application seeking permission of the court to allow affidavit affirmed by consulate and to record your consent and evidence of verification by video conferencing. In case the court does not permit it insist for your presence, apply for the time extension 8 moths or one year so that you can come back to give your consent and final submission after one year as the maximum time allowed in mutual consent divorce.
This appears to be your application for video conferencing and not affidavit of evidence.
Please ask your lawyer to prepare affidavit in chief which is drafted differently and you can get it sworn it while in India and then get the application for video conferencing done in abroad and get it attested though foreign consulate and post it to india.
You can not seek transfer of the case from Thane to Bandra Family court.
1) affidavit has to be filed in court on date fixed by thane court . affidavit can be affirmed earlier
2) you must have engaged a lawyer . he will make appropriate changes in affidavit prepared by you .
3) your case cannot be transferred from thane to mumbai family court
4) if court does not grant your application for video conferencing then take another date after 3 months when you will be in india after completion of assignment .
5) court would permit you to furnish your consent by video conferencing if you have been posted abroad
Thanks for your quick response.
Devajyoti,
At present, I am in India itself till last week of this March 2015.
So before leaving India, I can sign the Consent Affadavit in Thane Family Court in front of judge if required. (So no chance of fraud as Adv Devajyoti mentioned)
So Even then, Do I need to get it attested through Indian Consulate on the day of hearing which is one month later in April 2015?
Does Thane Family Court have facility for Video Conference ? If not, Can I move my case to Mumbai family court or other where video conf facility is available?
Pls share the consent Affadavit format?
I have drafted it as below. Please correct any mistakes in it:
AFFADAVIT FOR CONSENT TO PROCEED WITH SECOND MOTION FOR DIVORCE WITH MUTUAL CONCENT
This Affadavit is made at Thane on this xxth day of March 2015.
BY
Shri xxx S/o xx aged xxx years R/o My Address.
(hereinafter called the first party)
FOR
Smt xxx D/o xxx aged xx years R/o Wife Address.
(hereinafter called the second party)
Whereas the marriage between the first party and the second party was solemnised according to Hindu rites and ceremonies on xx June 2010 at xxx address in, Thane (W).
Whereas the Petition for our divorce by Mutual consent under section 13-B has been filed on 18th Feb, 2014 in Thane Family Court with both the parties physically present to complete the First motion for divorce.
I, Mr. (My Name) am affirming as under:
We got married on xxth June 2010.
Thereafter we had severe differences in six months and since from March 2011 onwards we are living separate.
She is living at her maternal home.
After 3 years and 8 months of living separate second party have filed for divorce by mutual consent at Thane family court in November 2014 completing the First motion for divorce with both of ours physical presence in court.
Second Motion date is scheduled on 24th April 2015.
I am unable to be physically present in court for Second Motion as in March 2015, I am moving out of town for office work for 2-3 months and my stay there may get extented further. I wont be able to get leave for attending court date.
So, To avoid delay In this case:
I am hereby stating that I have NO objection to go ahead with Second Motion for divorce and I would be present through video conference on actual date which is scheduled on 24th April, 2015. I am hereby giving my full consent for this.
I am stating this in sound mind and without any pressure from anyone.
I am hereby granting the Power of Attorney to sign on my behalf for this divorce to my mother xx and/or my sisters xx and/or xx whoever would be able to be phisically present on actual court date for divorce.
If video conference facility is not available in Thane Family court, I can arrange for it through personnel laptop.
In Witness Whereof, I have signed this Affadavit on the 16th day, of March 2015 in the presence of the following witnesses:–
xxx
(first party)
____________________
Witness 1:–
Witness 2:–1. You shall have to be present during the 2nd motion,
2. Video conferrence may be allowed by the Court if it has adequate infrastructure to conduct the said video conferrencing,
3. However, your lawyer may appear and pray for deferment of the 2nd mothin since you are out of the Country,
4. The said MCD petition can be heared and disposed of within 18 months from the date of its filing.
1. The requirement of personal appearance after 6 months of filing the MCD is to ensure that the couple were given enough time to reconcile,
2. The Court will ask the couple whether they will reconcile now or not,
3. Several times it has been seen that the couple reconcile when the MCD petition is rejected,
4. This period is called cooling off period,
5. Your affidavit before completition of the cooling off period will not be accepted by the Court.