• What can be punishment if wife doesnt want second motion petition of divorce

I am an govt teacher and my husband is a IT professional. Though he earns more than me but he never told me his salary. He earns good but he is not consistent worker.he is a lazy person and doesnt have will to work. I saw him taking many leaves,irregular in job and took break in job also without telling me.i realized that he married me only for the money. There were mental, physical, emotional and financial torture in laws house. Marriage for them is only a sourse of benefit in all aspects not a mutual, emotional and a bond of togetherness and responsibility. After one year of marriage i had a baby boy now he is of 1.5 years old. My husband and in laws never took any responsibility of my pregnacy, delivery and afterwards of child. After mediation of their and our relatives he didnt agreed to live along and after many efforts he agreed over mutual divorce by agreeing to give back our money, jewelry, and dowry articles taken in marriage from us. Not a single penny of his earned money although he and his mother both has four properties in their names which includes three houses and one plot, and not a single penny for child. i too agreed over it thinking that filing of cases against his and his family will be panic for me too As i am a single mother and working too and there is no future with a man like him. My lawer too suggested us for mutual divorce as he said its not neccessary that you gets all your money back after filing cases against him plus it will be very exausting and timekilling. So i agreed over mutual divorce on the condition that if they are not giving me money for child then it will not be included in settlement agreement also. So in settlement agreement there were no name of my child. it was only wifes past,present, future alimony although it was the money we had given in marriage. We filed a mutual consent divorse petition in october 2018. That was allowed in the court. Half alimony paid that time.in that divorce petition our lawer wrote child's name in the petition after insistence of my inlaws. Our lawer said there were no issue writing childs name in petition as its not in settlement agreement and we will not write it in joint statement. If we will not write in petition now they wont agree for giving back ur money and for divorce. Then in January 2019 we filed second motion petition praying for 6 months waive off. That wasnt allowed. So we had to file second motion again after 6 months. But during these 6 months first my mind has changed a bit over this decison of divorce. Second i came to know that lawer had added 'child' amigously in his handwriting in settlement agreement also.now i dont want to be present for second motion as im feeling that i have been cheated. But settlement agreements condition is if wife breaches the agreement she will be liable of concequences.and have to return money paid by husband.i hv no fear of returning the money but what other legal action husband take against me? What punishment court can give?
Asked 1 year ago in Family Law
Religion: Hindu

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34 Answers

if you with draw your consent your divorce petition would be dismissed 

 

2) you would not be punished by court 

 

3) at most you have to return money received by you 

 

4) since your husband is a wastrel it is better you get divorce decree by mutual consent and move on in life 

Ajay Sethi
Advocate, Mumbai
76982 Answers
4621 Consultations

5.0 on 5.0

1. The money you are paid with is your alimony an hence you are legally entitled to this. So they are not doing any charity to you nor it is a bounty.

2. So you have every right to refuse to attend in the second motion and refuse to participate in the mutual divorce proceeding.

3. However before doing so you may file a petition in the court stating the reason like exercise of fraud behind your withdrawal of your consent for the divorce.

Devajyoti Barman
Advocate, Kolkata
20790 Answers
296 Consultations

5.0 on 5.0

Six months time provided In MCD so that couple can mitigate their dispute and reconcile or reach to some amicable settlement. So, you can withdraw your consent anytime without assigning any reason. But you have return whatever you received in lieu of settlement otherwise legal consequences.

Breach of agreement has no legal consequences. All you need is refuse to 2nd motion and return everything you received. 

Yogendra Singh Rajawat
Advocate, Jaipur
20144 Answers
28 Consultations

4.5 on 5.0

See there is no punishment for denying in second motion you can freely refuse to give consent for second motion further there can be no punishment .

At this stage I would advise yo to take divorce and money for child you can file separate application for maintenance.

Shubham Jhajharia
Advocate, Ahmedabad
25207 Answers
105 Consultations

5.0 on 5.0

You would not be punished by the court if you do not appear in the hearing of second motion of divorce. 

Your husband can later file suit for recovery for recovering the half alimony amount paid to you during the first motion of divorce. That's all.

Siddharth Jain
Advocate, New Delhi
5534 Answers
64 Consultations

5.0 on 5.0

1. Mentioning the name of the child will have no consequence in the MCD petition and the resultant decree of divorce.

 

2. However, there will be no criminal case against you for not attending the 2nd motuion since 6 months cooling of time is allowed to ensure that both the parties rethink about their decision and mke necessary change if they or one of them so wishes.

 

3. You can claim that the amount your husband has paid is the amount you have spent in the marriage in case he files any case against you to reclaim the said amount from you.          

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

You need to return the money and all other things agreed in the consent terms. If you don't agree and back out the mutual consent petition will be dismissed

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

It's immaterial as to who is the first person to file the case. Whoever can can prove their statements/ allegations would be able to to get a favourable decision.

If you do not appear during the second motion of divorce consecutively, it would imply that you have withdrawn your consent from the mutual consent divorce and your case would be dismissed subsequently. Therefore, the settlement deed would have no value and not be legally binding on you. So, you are not liable to you follow it at all, but you should refund the money received by you during the first motion of divorce to your husband.

 

Siddharth Jain
Advocate, New Delhi
5534 Answers
64 Consultations

5.0 on 5.0

NO, just wait.

NO, once you decline the motion, settlement no more binding neither petition.

You can complain to Bar association and bar council.

Withdraw MCD or consent from MCD and file fresh applcaiton for maintenance.

Yogendra Singh Rajawat
Advocate, Jaipur
20144 Answers
28 Consultations

4.5 on 5.0

Hi 

1) Any party to mutual consent divorce petition can change their mind and withdraw the divorce petition at any time , but before the second motion.

 

2) Since , your second motion petition has not come up for hearing, on day of hearing, you may submit an affidavit that

a) you are NOT interested in Mutual consent divorce and

b) that the Memorandum of settlement submitted earlier has been altered with out your consent. 

c) that you are withdrawing the services of your present lawyer. 

 

3) There is NO punishment for a party who withdraw's from a mutual consent divorce.

 

4) You may also pray to the court that you are willing to return the alimony money, but at the same time pray to the court to permit you to retain the interim alimony as maintenance for your minor child.  Courts generally allow you to retain a  part of alimony money that was received by you at time of first motion as interim maintenance. 

 

5) You can always mention to the judge that you never agreed to include the child name in settlement and that your lawyer has included the child name without permission.

 

6) Remember, in family court, the court believes only the parties and NOT the lawyer. In fact lawyers are not even permitted to represent parties in court.  So you can withdraw the services of your present lawyer, by mentioning the same in court. 

7) You can file a case for child's maintenance as Natural guardian of the child as the Memorandum of settlement has been written in hand and that was without your knowledge and consent. 

 

Hope this information is useful.  

Rajgopalan Sripathi
Advocate, Hyderabad
1944 Answers
356 Consultations

5.0 on 5.0

Once you don't agree to the said settlement divorce then what other action remains.  It becomes contested now and any of the parties if wants to seek divorce needs to file contested now. All terms agreed in that earlier mutual consent is dismissed

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

Don’t initiate any action 

 

2) your counter sign is necessary fir any changes made 

 

3) change your lawyer 

 

4) you cannot claim child maintenance separately if husband is paying lumpsum for you and for child 

Ajay Sethi
Advocate, Mumbai
76982 Answers
4621 Consultations

5.0 on 5.0

1. You can file complaint against husband though since mutual divorce is filed and there is settlement the cases may be weak.

2. See you take amount then file for maintenance for child and seek more amount.

3. Yes you can file complaint with bar council. Further he cannot give consent on your behalf in divorce.

4.See merely writing child's name in petition doesn't take away child right to maintenance. 

Shubham Jhajharia
Advocate, Ahmedabad
25207 Answers
105 Consultations

5.0 on 5.0

There is no question of any punishment if you withdraw your consent during second motion.

In fact he cannot insist on returning the money he had given, you can simply state that it was your money that he returned and not any alimony.

He cannot do anything about it.

It is your right to refuse to continue with your consent for mutual consent divorce.

You can take a decision on your own, nobody can question you on this.

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

1. If you withdraw your consent for mutual consent divorce, you need not take any action in furtherance , wait for him to initiate any action which can be faced or handled accordingly.

2. Since you dont like your child name in the settlement you can oppose to it and can object to it and get it cancelled.

3. If your lawyer is acting against your interest, you can change the lawyer and can also inform court that you do not approve your lawyer's recent act done on your behalf since his integrity is under suspicion.

4. Since the mutual consent divorce petition has been dismissed you dont worry about the child's name in it or not, you may file a child maintenance case after that at a later stage.

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

1. No, this will not weaken your case.

2. There is no need to challenge the deed or settlement agreement as once you withdraw your consent form the mutual divorce proceeding such documents looses its force.

3. There is no need either. Just do not give consent to this mutual divorce petition.

4. You can always file a case udner PWDV Act seeking maintenance of the child.

Devajyoti Barman
Advocate, Kolkata
20790 Answers
296 Consultations

5.0 on 5.0

there is no provision in law to punish if spouse change there decision during second motion.either husband or wife can refuse during second motion. MCD petition would be dismissed. 

 

Mohammed Mujeeb
Advocate, Hyderabad
17332 Answers
11 Consultations

4.5 on 5.0

1. You need not wait for your husband's action to react. You can take your action independently.

 

2. What do you want to challenge before the Court? The genuineness of the document for the insersion of something without your knowledge? Yes you can do that if it helps you.

 

3. If there vis a trust deficit on your lawyer, you should change him forthwith.

 

4. If you have already mentioned his name in the petition claiming alimony with yours, then you can not claim again. So, you shall have to deny tha you have added his name in the petition, if possible.

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

Dear client 

Don't you worry about the child future even if you write child name in the petition as you have no right to give up child maintenance which he is entitled to get from his father. Supreme Court ruling

You husband will always be liable to pay child maintenance even if you give it up in MCD. And now even if you back off from Divorce it will be in benefit to your husband because he will file divorce case on this ground as easily get divorce.

If you think your lawyer is cheating you then on next hearing hire a new lawyer and ask him to stand for you on second motion and give statement in front of judge that you are changing your lawyer

Mohit Kapoor
Advocate, Rohtak
9322 Answers
3 Consultations

5.0 on 5.0

You can file a petition before concerned court informing the court that you are not willing to go ahead with the mutual consent divorce and the same may be dismissed, the court will pass an order  dismissing the MCD petition even if one of the partners is not willing for this mutual consent divorce.

If he has filed the money recovery suit, then you may better admit before court that you have accepted the money in the first motion and are ready to return it.

Simultaneously you may file a DV case demanding the return of the dowry amount he had taken at the time of marriage along with your articles lying in his house and compensation for his tortures and harassment.

Since you are a salaried employee and drawing a handsome income you may not be eligible for alimony however you an claim maintenance for your child by filing  a maintenance case under section 125 Cr.P.C.

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

You can initiate the same as per your discretion. You can intiate proceedings against him for seeking alimony from him

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

In a Divorce by mutual consent, both the parties have the freedom to withdraw their consent as the consent cannot be taken by coercion. 

in recovery suit of money you can contest the case on merit. Generally recovery suits takes a long time to decide. 

As per the order passed in January 2018, the court ruled that even if the wife is working, the husband is liable to pay her a maintenance amount. you can also claim maintenance for your minor child u/s 125crpc.

Mohammed Mujeeb
Advocate, Hyderabad
17332 Answers
11 Consultations

4.5 on 5.0

You should appear in court with draw your consent for second motion and offer to return the money received by you at time of first motion 

 

take the plea that you don’t want divorce but reconciliation 

 

then file petition for RCR seek maintenance for yourself and child 

Ajay Sethi
Advocate, Mumbai
76982 Answers
4621 Consultations

5.0 on 5.0

1. See if he is not agreeing to your terms of mutual divorce you may file contested divorce against your husband on ground of cruelty and adultery. Further you may also seek maintenance for your child. See being in govt. Job is not negative point for you the court sees the income of husband and wife to decide the maintenance though for child he has to pay.

Shubham Jhajharia
Advocate, Ahmedabad
25207 Answers
105 Consultations

5.0 on 5.0

You have collected the amount and refused to 2nd motion. You have committed contempt. Either return the amount than amend the MOU or agree for MCD.

You are in govt. Job. Self dependent, court may not grant you alimony. 

Better appear in court, offer return of full amount and than come to a new settlement with full custody of child plus heavy alimony.

Yogendra Singh Rajawat
Advocate, Jaipur
20144 Answers
28 Consultations

4.5 on 5.0

- The maximum period to file for a second motion is 18 months from the date of presentation of the First Motion/divorce petition in the family court.

- Further , either of the party can refuse to proceed for the second motion legally , with the condition to return the benefit received at the time of First Motion. 

1. Hence , legally you cannot file any case against him before 18 months from the date of passing First motion.

2. Yes, statement before the court is mandatory 

3. You have your right to change the lawyer with the permission of the court. 

4. If you will not proceed for second motion , then the contents of First motion would be ceased , as it was a petition for mutual divorce and not a contested , Hence legally you can claim child maintenance . 

Mohammed Shahzad
Advocate, Delhi
4180 Answers
43 Consultations

5.0 on 5.0

You can stay in your matrimonial house 

 

2) court would not award interest at 24 per cent 

 

3) she should return money received by her 

 

4) husband can file case of wife has committed breach of consent terms 

5) husband would not get child custody but would be awarded visitation rights 

Ajay Sethi
Advocate, Mumbai
76982 Answers
4621 Consultations

5.0 on 5.0

Legally a wife can stay with her husband or at his place of residence. 

no need to pay interest.

MOU is merely a statement of understanding between two or more parties which when made has no enforceability in the eyes of law as such an agreement has no intention to create a legal bond between such persons. As a result of which, if in case there is a breach of such MOU there is no relief. 

Mohammed Mujeeb
Advocate, Hyderabad
17332 Answers
11 Consultations

4.5 on 5.0

1. You need to get residence rights as per DV Act to stay and only if the said home is your matrimonial home then you can go there. 

2.The interest if any will be decided by court. 

3. They can file custody separately if they want. If you don't pay the court will pass orders to pay you back

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

1. See you may return the amount and you may apply before court to withdraw the consent for divorce.

2. You wont have to pay any interest on the amount in case he file any such case you can contest same.

3. See if you withdraw consent he may file though if you seek more time from court he may not be able to file for recovery of same.

Shubham Jhajharia
Advocate, Ahmedabad
25207 Answers
105 Consultations

5.0 on 5.0

1. When your had received the blank paper by post from him, you should have informed him that he has sent blank paper to you by post with some ulterior motive. At least send it now.

 

2. You are at liberty to refuse to attend the second motion for which no contempt case can be lodged against you. The said lawyer is fooling you.

 

3. You cannot file a maintenance case for you since you are working but certainly can file the maintenance petition for your child which he shall have to pay.

 

 

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

1. You can withdraw your consent for the MCD on the  day of the second motion. Returning payment received by you can also be held by you on the plea that bit has been spend on your child. You can certainly stay at the place where your husband is staying. Before going there, inform the local police accordingly alleging that you apprehend that you might be assaulted by your husband for which the police might accompany you.

 

2. Do not pay him anything stating that it has been spent on your child. Judgments are passed basing on your petition and arguments forwarded by your Advocate.

 

3. Filing a case is a civil right which can not be taken away by any sort of MOU. So, contest the case filed by him fittingly and you also file the maintenance case for your child.

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

1. You are his legally wedded wife till your marriage with him is dissolved by a decree of divorce, thereby you are entitled to reside in your matrimonial home with full rights.  Therefore you can proceed as decided by you.

2. He is not doing business to demand the return of the money with interest, you can challenge the same in court of law if he is dragging you to court on this.

His claim for interest along with the return of that money is  not maintainable.

3. The MOU is not legally enforceable hence do not bank upon the conditions of the MOU fully.

You can take it as an evidence but cannot enforce the conditions in court of law.

Hence you can confront and challenge his all such further cases on merits and with the support of documentary evidences available in your favor.

 

 

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

1. Yes, after returning the amount received at the time of first motion , you can opt for joining the husband legally. 

- If he not allow you to enter then you can help from the police as well. 

- Legally without getting divorce from you , he cannot depart you from his life 

2. No, you are not liable to pay any interest on the said amount received before the court at the time of First motion.

3. No, he cannot file a recovery suit for the money received by you , as it is not a loan amount , but is an amount of alimony for which a wife is having her right to receive legally. 

- Further, if he files any case against you , then that will not maintainable. 

- Further, if you both not proceed for Second motion , then the said MOU will not have any legal value in the eye of law. 

 

You can connect with me for more suggestion in Delhi via kaanoon.com 

Mohammed Shahzad
Advocate, Delhi
4180 Answers
43 Consultations

5.0 on 5.0

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