• Dissolution by mutual consent - hacks to know

My husband is an army officer & we have been living seperately for the last 1.5yrs. I am intending to take a dissolution of marriage on mutual concent, without any claim of alimony/maintinance . 
i would only be wanting to get back my things from the place where he is posted,which i think he would agree to. 
Kindly guide as to how can i prove that we have been seperated for 1.5yrs & would want to process this case at the earliest. 
2. Should my filing state that we have been away for 1.5years in the 3yrs that we have been married.
3. One week after the 1st motion,can i please ask for a widrawl of cool off period.
Asked 4 years ago in Family Law
Religion: Hindu

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16 Answers

Dear Client,

Mere assertion in MCD petition is sufficient to inform court that, both are living separately. N in your case, it`s out of state thing, so easily be convincing.

Cool off period application will submit along with diovrce petition. Depends on court`s discretion to waive or not.

Prevailing circumscription in which cool waive  -

Act to reunite the parties have failed ; the parties have genuinely settled their differences including alimony, custody of child etc; the waiting period will only prolong their agony


Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. See in mutual consent divorce you do not need to prove it you both can make a joint petition in same you can mention about the separation period.

2. You can ask for waiving of cooling of period once the first motion is complete jointly.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You have to state in petition that you have stayed separately for period of one year 

 

2) averment by  both petitioners is sufficient 

 

3) 6 months cooling period is not waived by the courts 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

If husband files petition for RCR don’t contest 

 

2) even if husband obtains RCR decree he cannot force you to stay with him 

 

3) if you contest then RCR proceedings would take 5 years to be disposed of 

Ajay Sethi
Advocate, Mumbai
89849 Answers
6516 Consultations

5.0 on 5.0

That is for the reason and in anticipation, lest you may file criminal case on him later. So to play safe that he is willing to resume with you and filed RCR. And you only seeking diovrce.

Don`t involve relatives and outsiders, they will ruin the situation where MCD will lost chances.

MCD is best but don`t agree to their terms that you may result in loss.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. After one year from the date of marriage one can file petition for mutual divorce in which minimum time of separation would be one year.

2. After filing of the MCD one can apply for waiver of the cooling off period but the same depends on the discretion of the judge. Unless a case of great urgency is made out the court does not waive the cooling off period.

3. Take decision as the situation arises.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
416 Consultations

5.0 on 5.0

Dear madam 

Ask your husband what he wants.

The mutual divorce petition contains all the conditions on which you both agrees for the divorce. And you can just mention that you are not living together since the day you both living separately. 

2. 15 days after the first motion you can apply for waving of cool off period. 

 

For your follow-up question the answer is that tell husband's family that if you want to go with regular divorce then you should be wanting maintenance and alimony. And also you can file case for maintenance under section 125 CrPC

Tell them if you go for mutual divorce it's your benefit.

Don't give them any thing in written before filing of divorce of either form. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

You don't need to prove court believes the same on your affidavit in mutual consent divorce

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

Court of law are required to be proved by evidence whether documentary or statements of witnesses or you can submit an affidavit of any one witness required. 

You will have to file seperate application for waiver of 6 months stating the facts and circumstance of your case.Court may after considering the application may pass order for waiver of 6 months.

Mohammed Mujeeb
Advocate, Hyderabad
19036 Answers
32 Consultations

4.5 on 5.0

See if they are not willing to give divorce and there was harassment from there side then you can file a complaint for same in mahila police station. Further if they file RCR you need to contest same and can file for divorce on ground of cruelty. At present you and husband can enter into a mutual divorce agreement and can present a divorce petition mutually ,  

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Madam,

Yes, it is better to go for mutual consent divorce rather than contested divorce as it is take long time duration.  Convince you husband regarding this and more over you have not asking any alimony and all it is easy to get divorce as early as possible.  You both are already separated from one year. 

Secondly the RCR is a time consuming process, However, please note - this is just a legal proceedings, and no court in India can actually physically compel wife to stay with husband against her will. 

RCR will be passed and if wife fails to join husband within one year ,it is a ground for divorce for husband for failure of restitution decree

What is Divorce by Mutual Consent?

 

Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent.
Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years)

The Conditions required under section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, Hence marriage should be dissolved. Under these circumstances a Divorce by Mutual consent can be filed.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

In mutual consent divorce, the petition will be filed jointly.

Just a mention in the pleadings that you both have been living separately for more than a year would be sufficient and you do not have to bring any evidence to prove the same.

You can very well file a joint affidavit just after a week or ten days seeking to waive the 6 months cooling off period and dispose the case immediately for the reasons you may rely upon, the court will accept  the same and pass an order/judgment dissolving your marriage by a decree of divorce.

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

If your husband is not willing to go for mutual consent divorce then you cannot force him to accept your decision.

In that circumstances you have no option than to file a contested divorce only on the grounds of cruelties.

You try to convince him and ask him to agree for the same so that the whole process can be completed within a very short period, especially when there is no more any interest  in both of you to continue the married life anymore.

 

 

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

Yes you should mentioned that you have not lived together for 1.5 years 

the petition shall contain all the grounds of separation and conditions of separation 

Anilesh Tewari
Advocate, New Delhi
17968 Answers
377 Consultations

5.0 on 5.0

You can not do anything if he refuses to go for mutual consent divorce. However, no one will advise to not go for mutual consent and especially in case where you are not claiming any alimony or maintenance. 

 

Regards  

Anilesh Tewari
Advocate, New Delhi
17968 Answers
377 Consultations

5.0 on 5.0

Divorce by mutual consent is the fastedt way to take divorce. Also when you do not wish to claim maintenance or alimony from the husband. 

You dont have to prove that you have been staying separately for past 1.5 years. Your statement on this is more than sufficient. 

 

You may send a legal notice (through an advocate) to your husband or email him directly for divorce by mutual cinsent. 

There will be few counselling sessions dpne and eventually divorce will be granted. 

 

Regds,  

Adv. Payal 

Payal Arora
Advocate, Pune
363 Answers
18 Consultations

4.5 on 5.0

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