Thanks to this community for providing helpful knowledge/directions/suggestion to everyone in need. Background I am from Nagpur and salaried employee in pune, Married in 2007 at pune near wife native place. Found out that wife is having affair, from her mobile conversation with her paramour in 2011. Since then, she is staying at her parents house. Mediators intervened in 2015 and filed jointly for MCD in Nagpur family court, however wife did not turn for 1st motion and finally the application was disposed. She approached me in June 2018, and we filled again for MCD at Nagpur family court in Feb 2019, She came for 1st motion and also attended counselling in March. The 2nd motion is end of Oct 2019. I received message via mediator that she has sent consent withdrawal letter to court around a month back and has informed to pay her 50 lacs and half property if I want her to come and sign. I am against paying her anything and also this amount is so huge that its just not possible even after selling everything I own. They are not ready for anything less and have asked to proceed with court proceedings. Imp points in MCD - 1. No complaints with each other 2. All her jewelry, etc. is with her 3. She stays with her parents due to frequent quarrel between us from 2011 4. Have given up all her rights to claims & alimony Current thought - I am planning to convert the MCD in contested divorce under cruelty and desertion 13(1)(ib). Kindly suggest/help me - 1. Any better options/strategy than going for contested divorce under 13(1)(ib) in my situation ? 2. Would it be good idea to use her mobile conversation in contest divorce and at what stage it would make big impact, my guess during cross ? 3. Points that I need to be careful or missing ? 4. Any guidelines for lowering maintenance, like resigning job, transferring farming lands, etc.
Once you convert your consent divorce in contested the grounds taken in mutual consent divorce will but be beneficial to you.
Mutual consent is good remedy. No better strategy.
You can use her mobile phone records at evidence stage or confrontation in cross.
No there is no better solution than to go for contested divorce on ground of mental cruelty adultery and dissertion.
You can also attach copy of both MCD petitions.
You should specifically mention that she have left you without any sufficient reason and on her own will due to her extra marital affair. By this point you can get divorce without paying a single penny as maintenance or alimony.
Why do you want to pay any alimony at all? It's she who has breached the matrimonial obligation. So where's the question of MCD? It's divorce based on one party's fault. So you must opt for contested divorce on grounds of cruelty and if you have concrete evidence even one sexual relationship outside marriage, you can plead divorce on grounds of cruelty and adultery.
You must plead alimony rather then contemplating paying it.
- As per section 13 B of the Hindu Marriage Act , Family Court in proceedings for mutual consent divorce cannot compel the party to continue with consent as it has become irrevocable if one party has withdrawn/withdrawing.
- If,Family Court does not have the power to compel the party to give consent mandatorily once it has been agreed by way of First motion , but Family Court or other Court has the power to proceed with Civil Contempt.
- Further, as per law, the defaulting party must have to return the benefits and advantages, that were taken from the terms of the settlement or given at the time of the first motion.
- Hence, after withdrawing the consent after first motion repeatedly , she has misused the legal machinery and further caused harassment to you.
- So, without any further delay you should file Civil Contempt Petition before the court on the above mentioned ground for the punishment and fine as well.
- Further, on the ground of continued harassment by way of using legal machinery for her benefit , and unliked character(Adultery) , and dersertion , you should file a case of Divorce.
- Dont worry , you will get relief from the court.
Good luck and dont forget to rating Positively.
the remedy available to you is to file a Divorce petition under any of the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955. This would be a contested petition and may take a much longer period for you to get Divorced as compared to your current petition under Mutual grounds wherein the time taken is 6 months under normal circumstances and 18 months under other circumstances related to your case.
voice conversation recording is admissible as an evidence in the court of law as per sec. 65 (a) and Sec. 65 (b) of the Indian Evidence Act.
1)you have to file separate petition for divorce on grounds of mental cruelty
2) you should enclose transcripts of audio recordings in filing petition
3) mere resignation would not help in reducing maintenance
4) wife guilty of adultery is not entitled to any maintenance
1. See in your case if she withdraws the consent agaisnt just for money in that case you can approach high court seeking divorce as wife for money is harrasing and not coming for consent is mutual divorce and it is cruelty.
Rajasthan high court in one such case has granted relief on similar facts even the lower court rejected MCD directly high court granted divorce.
This is news report of same citation can be searched.
2. Also in case if in high court it fails you can go for contested divorce and can use messages call records as evidence in contested divorce.
3. You don't need to resign or transfer assets without same you can contest maintenance and alimony.
1. The MCD agreement is reduced to scrap now as she has withdrawn her consent.
2. The only remedy in your hands is to file contested divorce if you wish to end the marriage.
3. Audio recording can always be led in evidence if the same is in accordance with provisions of Evidence Act.
I tell everyone that MCD is teethless process of law. Many have been trapped in this process.
Immediately withdraw MCD.
File RCR.
This would reduce the chances of paying maintenance.
If wife willfully disobey the RCR order, option is there to file contempt petition in high court.
Or you can file divorce petition after one year of non-compliance of RCR order.
If you can prove her extramarital relationship you can file contested divorce petition without going for RCR.
If she is not interested in giving you MCD then file for divorce for desertion and mental cruelty. Also she would not be entitled to maintenance as she has wilfully deserted you and is living in adultery for the past 10 years.
Regards
1) If she had affairs in past before marriage than you can apply for divorce on adultery ground and she will not get a single penny for alimony or maintenance.
2) Till you're alive she is not entitled to get any share from your property nor from ancestral property.
3) In adultery case she will not get maintenance.
MCD is best, contested divorce will take years and she can file cases against you.
Well her demands are unjusify, if she dont turn up for MCD than withdraw it and file contested divorce on the ground of cruelty and adultery.
Her conversation admissible in evidence and will submit along with petition.
1. NO.
2. Yes
3. you will have to withdraw your consent in the mutual consent divorce and will have to file a fresh case of divorce on the ground of mental cruelty.
4. You may show less salary in order to reduce the maintenance.
Regards
1. If the situation is intolerable and it may not be possible for you to continue with this sorry state of affairs, you may better go for contested divorce and be firm on yor decision to not to get diluted even if they are coming down for negotiation.
2. The mobile conversation may not be admissible as primary evidence in court hence you may rely on the facts of her desertion, withdrawal of her consent for MCD etc.
3. You can discuss with your advocate at length where you will be advised about plenty of such points during interaction.
4. Do not resign your job, do not sell any property, you can challenge her maintenance on the basis of her claim because she has to prove your income with substantial proof.
