Case is contested , my wife filled a maintenance application but the lower court rejected her application, Since my wife is living in adultery and my Girl child who is 9 year old is in her custody and not allowing my child to see / talk to her for more than 6 months. In prior she already recorded ,she is ready for the divorce. There is a suggestion from the court to go for the mutual consent , because she already agreed for the divorce and to withdrawing the case by both the parties. Can you please suggest me how to proceed. 1) I am contesting this case for the custody of 9 Year Girl child ( My Lawyer is pursuing to withdraw and to contest in Guardian and wards Act). 2) I want to implicate a third person who enticed my wife. 3) what will be the impact of Withdrawing the case at this juncture, will the recorded evidence by both the parties can be reused in future , will court maintain the records permanently. Thanks
You can convert existing petition of divorce into divorce by mutual consent
2) consent terms can provide that you would have joint custody of your child
3) wife would not be entitled to any alimony or maintenance
4) if you don’t trust your wife continue with the existing case and obtain divorce on grounds of mental cruelty and adultery
5) I presume you have made her lover co respondent in divorce case
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. Divorce by Mutual Consent is as the name suggests is when both parties ie; husband and wife comes to a mutual understanding that the marriage be dissolved amicably. It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent.
In all there are two court appearances in a mutual divorce
So think about agreements. Here are the list facts to be mutually agreed upon in the petition for Divorce by Mutual Consent:
If it is satisfied then only withdraw the case .
Greetings!
As Per the hindu minority and guardianship act guardian below the age of 5 years will be under the custody of mother above can be given to father so based in which you can contest;
You have to file misleading application if court allows the party can be impleaded;
Have ti file withdrawal application based on which it will be withdrawal and file will be maintained by the court after disposal the file will be moved to record room and will be stored there and if required in future they can recall the order of the said case by following the procedure / by filing an application before court for recall of order of such case if court permits then the file can be opened!!
1. Now the Supreme Court of India has struck down as unconstitutional Section 497 IPC which mounted criminal liability for adultery on the paramour of a married woman. So you cannot proceed against him.
2. Mutual Consent Divorce petition is a composite petition which can cater to the issues of permanent alimony/maintenance and child custody/visitation rights.
3. The evidence already recorded cannot be used to anyone's advantage/disadvantage once the petition is withdrawn.
No withdrawal will not be considered as finalization of evidence stage but the evidence on record will be evidence before court
Hi,it is advisable first to file the mutual divorce petition,with consent of your wife giving you the permanent custody and making you the natural guardian..Afterwards you can withdraw the petition
1. If both of you agree mutual consent decree then the terms of settlement can very well be mentioned in detail in the mutual divorce petition.
2. In the MCD you can include the terms of visitation of child as well joint custody and payment of permanent alimony. if any.
3. Unless and until MCD is agreed to be filed and signed by parties do not withdraw any case.
4. Since adultery is no more a crime your only option is suit for divorce on adultery in which her paramour can be made a party.
1) Instead of withdrawing the case straightaway, you make an application jointly for converting the present case to Mutual Consent Divorce (MCD). In the T&C you can add a clause for having custody of child by both the parties.
2) The third person (her boy friend) must be made party to the proceedings if you continue to fight the case.
3) Person living in adultery is not entitled to maintenance / alimony, further more, when her application is also dismissed by court.
No, evidence recorded earlier will not be reused when the case is withdrawn in future.
1. See if you both want to divorce mutually all the cases can be withdrawn on compromise you can seek visitation from your wife and same can be recorded in the compromise between you and your wife.
2.See no criminal charge against such person can be filed.
3. No it cannot be reused.the record will be there but evidence cannot be used
NO role of third person in case, court will decline your request and her adultery is already proved. Her consent to give diovrce is recorded in court order sheet. Withdraw the suit by submitting that both are agree to file mutual divorce.
Do not withdraw child custody.
In maintenance case you cannot claim for custody of the child if your wife is ready to give divorce by mutual consent then its advisable to reduce the custody terms in the divorce petition and present the same before the court. Withdrawal of any petition before coming at a settlement is not advisable feel free to contact in Mysore
- As per the Hindu Marriage Act, A petition for a 'Mutual divorce' can be filed if you and your spouse are facing difficulties and have decided to part your ways legally.
- After filing the petition for Mutual divorce ,you both will have to given consent/statement for the divorce , and also that there shall not be not left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc.
- If the court is satisfied after hearing the parties that the allegations in the petition are true and that there cannot be any possibility of reconciliation and cohabitation, it willl pass a decree of divorce declaring the marriage to be dissolved , and this Decree will be final and unchallengeable.
1. Yes, for a mutual divorce ,both the parties will have to withdraw all filed cases.
- Before, filing the petiton for mutual divorce , you should decide for the permanent custody of child or visitation right .
2. Yes, you can lodge your complaint with the police or higher official against that third person , who enticed your wife , for the offence of breaking a matrimonial life .
3.No, no parties can challenge the Decree , granted on the ground of Mutual divorce. You both will be alien for each other .
You can seek in the court for custody of your daughter citing the adultery of your wife as reason.
As per the provision laid down under Section 13B of Hindu Marriage Act, in the case of mutual consent divorce, both you and your spouse is required to reach an understanding and decide mutually upon all the matters that shall be affected by the dissolution of your marriage. Child custody is one of the most important aspects that needs to be settled.
Both you and your spouse should decide that who is going to have the physical custody of the child, duration of visitation rights and interim custody during summer and winter vacations and other holidays. Both parents are equally competent to take the custody of the children. It’s the understanding and agreement between parties which prevails subject to the welfare of the minor child(ren). Parties can have an understanding of joint custody or shared parenting in mutual consent divorce process
The case for custody will be filed as per guardian and ward act.
So you can withdraw other cases and file fresh case for custody of your child.
But it will be better if you continue the divorce case on ground of adultery and file fresh case for custody of your daughter.
1) Since she is educated , post 2018 adultery quash, her behaviour changed and she is aware that paramaount custody of a minor child (Girl) is still with Mother under HMA. She will not get a permanent maintenance / alimony and she is not entitled for husband property. Only the child will have all the rights. She also aware that paramour cannot be punished under HMA even after making him as a co-respondents. Hence she responded to my petiton that she is ready for the Divource. 3) Court has recorded her behaviour and noted her confession of extral marital relation ship during the proceedings , i.e photos of her with paramour in different places and times. Now the status of case is only Respodent evidance , argument and Judgement. Hence all the aligation made by me is correct. 4) from above situation I may get the relief 5) My situation is that at the age of 45 no parents ,child and wife stays with me. Now I left alone with visitation rights of 7 Hrs / week. hence I am into the conclusion that better for me to go for MCD and to negoitiate to increase the visitation rights from 7 hrs to weekend's overnight, festivals and vacation.Restrict my wife not to take my child outside the city and to move my daughter schooling without my consent. close the case before the judgement passed. will be waiting for your better suggestion
Since your evidence has been completed and case has been placed on board for wife evidence
it is better you continue with the existing case
2) you can make application for conversion of existing petition of divorce into divorce by mutual consent
3) the problem is wife is at liberty to withdraw her consent for MCD at any stage and you would have to start all over again
4) you can seek joint custody of your child and custody during vacations weekends etc in existing divorce petition
See mutual divorce on your terms in this situation shall be best option as you can negotiate with her for visitation rights , maintenance.
See even from.court you will get divorce even though she is at fault court may grant some maintenance to her if she is not earning so for reason mutual divorce is best option.
You are on the right track. Go ahead.
Greetings!
You Can file for mutual consent divorce and also request for the custody of the child as your child is 9 years old and you will be having a right against her if your well capable to take care of her otherwise you can request as you mentioned to increase visitation rights if court feel so then based on your evidence arguments may pass the order!!
Yes you can increase your visitation rights or even pray for joint custody of child if required
Preferably go for MCD. Since the issue is halfway down, you may go for completing the evidence, it will help in future.
Child custody will be joint custody of both the parties.
Dear Sir.
As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent
How to come to a mutual consent
The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.
After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.
Note: you must carry originals at time of court hearing.
At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.
After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.
Conclusion of Mutual consent divorce Proceedings
After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.
Child also don't have any right except right to residence and maintenance till become major. Her adultery is proved, divorce will grant and not entitle to maintenance.
Visa won`t provide to child without father consent. IF she agree for above in MCD, good for you.
1. If she is agreeing for the child custody also to you then you may consider her request for mutual consent divorce.
2. It means you do not want any amicable settlement to dissolve yor marriage with your adulterous wife?
3. Before withdrawing the cases filed by you, better think it twice and also consult a different advocate by producing the case papers before him/her and get his advise abut the decision to withdraw as to whether it would be advisable or not.
You can even decide about the child custody to you given the situation that she is into an adulterous life.
If her adultery is proved and yo get divorce on tht ground then your child custody case will become very easily decided in your favor.
Therefore instead of insisting on the visitation rights alone, you may go for child custody case also.
You can go for MCD for more time of visitation rights.
But with MCD your option for challenging the custody of your child become vague.
Since she has agreed for MCD better you seek for entire custody of the child that way you can get custody of the child. In case she refuses you can file Guardian and Wards Case its advisable to first consult a lawyer before formulating terms and conditions of the MCD