• Divorce and immigration

We got married in dec 2012 and straight after completing 2 years of marriage my husband asked me to leave since we were having many arguments. i went back to my mothers house and have been living there for the last 5 months. My husband also started off a business and so is in debt and his take home is very little. 
we had filed for immigration and now my husband says he is willing to help me immigrate there in exchange for a mutual consent divorce and that i dont ask for any maintenance fee. he also wants me to give the jewelry that was given as gifts back. 
i want to immigrate so i dont mind agreeing to the mutual consent divorce, but what happens to jewelery and maintenance.
Asked 1 year ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1) don't agree to give up your claim of maintenance 

2) jewellery given at time of marriage is your streedhan 

3) you can agree for divorce by mutual consent provided your husband  agrees to pay you alimony and return your streedhan 

4) if your husband unilaterally files for divorce it would take him 5 years . Hence he will agree to amicable settlement if he wants his freedom 
Ajay Sethi
Advocate, Mumbai
23363 Answers
1222 Consultations
5.0 on 5.0
Hi
 1. You can go ahead with a mutual consent divorce only after settling the issues of  jewelry , maintenance and alimony and other rights of property .
2. If your decision to migrate is important agree to his settlement and file mutual consent divorce. . If the jewelry given by him , that belongs to him, as you know all gifts and articles have to be returned to each other at the time of mutual consent divorce unless you both decided otherwise.
3. Your jewelry is what you got from your parents, and purchased with your own income, whatever gifted by husband and  in laws  are their s and if they demand it back you have to return. likewise he has to return all your jewelry and articles  , shtreedhan  to you.
4. maintenance is up to you if you want maintenance you should approach court with an independent petition , if you both are moving ahead with mutual consent divorce then the maintenance has to be decided between you both. So have to decide  that whether you want to go ahead without maintenance while agreeing to the demands of divorce without any claims for getting migration done. 
6. practically , you should put a condition that he should first arrange your migration then go for  divorce as once you sign and get your mutual divorce then there is no way you can ask anything further.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
1. In mutual consent divorce the spouses can agree on any condition which can be incorporated in the agreement. 

2. If you give up your right to seek maintenance and jewellery from your husband then you will subsequently not be able to claim the return of jewellery and maintenance.

3. You are free to refuse to consent to the conditions put forth by your husband and initiate proceedings for maintenance and recovery of stridhan.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Hello,
1) If you are agreeable for a mutual connected divorce, in the consent terms make allocation for one time alimony for you. Talk this matter out and negotiate.

2) The jewellery that was gifted to you is not owned by you and so you need to return it as part of the divorce. You can get back any gift/jewellery you have given him as well. It would be advisable to make a compromise for getting migration as that may help you prosper better in future.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
Dear Querist
Mutual consent divorce can be completed by both the parties, it will be better to execute a MOU/Compromise Deed and in this deed mentioned all the terms and conditions which should be followed by both the parties.

JEWELERY IS YOURS AND IT IS YOUR DECISION TO GIVE HIM OR NOT 
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. You shall have to trade off between your jewelery, maintenance with imigration,

2. If you want both then you shall have to wait for getting divorced with alimony/maintenance after which you can imigrate,

3. Negotiate with him for a compromise.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
Hi, if you don't want maintenance then you have to make a statement in the petition that you don't want any maintenance.

2. As you have stated your husband has agree for returning of jewelry after collecting the jewelry only you can sign for petition for divorce. 
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
jewelry given by any side to the bride is treated as streedhan and bride has full control over it and she is the owner of the jewelry. any contract for return of jewelry is void it can't be enforced by the court. wife can gift/sale/WILL it to any person with her free consent.

if you have waive her right to maintenance then you cn't claim at later stage. but during the divorce proceeding you have right to amend your pleading and add maintenance plea. your husband is bound to bear all maintenance if wife has any reasonable ground to live separately which is mentioned under section 13 HMAct, it does not matter that he has no income. 
   
Shivendra Pratap Singh
Advocate, Lucknow
2771 Answers
41 Consultations
4.9 on 5.0

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