• Husband breaching the terms of MOU

Hello all...
Me and my husband got into an agreement of mutual divorce. We got a MOU prepared for it in which he agreed to pay me 10lac rs payment, 5 lac on each motion and in return i agreed to withdraw my DV case, and quashing of 498A. Also i agreed to withdraw my application from his organisation (Army).
23rd Aug 2019 was my first motion and he paid me 5lac rs dn we moved our application to waive of cooling period of 6 months but court partially allowed it and gave the date of 16th Nov for second motion. After first motion i went ahead and withdrew my DV case and applications from his organisation. I also returned the amount of maintenance which i was getting in my account every month after first motion. After first motion my family fixed my marriage to a person and my ex husband got to know this thing. Now he has called me up and told me that he doesn’t want to pay me remaining 5 lac rs of agreed amount and if I don’t agree to this then he ll withdraw his consent from second motion. He is taking the advantage of my marriage fixed to another person. He also called my fiancé and spoke bad about me. He clearly told me that he is ready for divorce but won’t pay remaining 5lac rs on second motion. What to don?
Asked 4 years ago in Family Law
Religion: Hindu

3 answers received in 10 minutes.

Lawyers are available now to answer your questions.

17 Answers

If the terms of the consent has been filed then the parties are subject to contempt petition if the said terms as filed in the court are not being followed.

 

regards

 

Anilesh Tewari
Advocate, New Delhi
18078 Answers
377 Consultations

5.0 on 5.0

If husband withdraws consent you have long legal battle ahead 

 

2) you can file fresh petition for divorce on grounds of mental cruelty but it would take years to be disposed of 

 

3) in alternative file appeal against dismissal of divorce petition in HC as you have complied with consent terms withdraw DV case 

Ajay Sethi
Advocate, Mumbai
94689 Answers
7526 Consultations

5.0 on 5.0

Why are you getting hasty to remarry, Certainly, he will take advantage of it. Whats is the need of hue and cry, you should be silent until diovrce not grant.

Well, file contempt petition in court, that you withdraw cases due on some terms mutually agreed and as you withdrawn the cases, he is moving back.

On 16th refuse the consent and submit before court his act. Court may direct him either to fulfill condition or may initiate contempt agasint him.

Submit fresh complaint to his HOD, also mention his act of smartness that how he manage to got cases withdraw on false pretext.

And you don`t be hasty and show yourself willing.

Yogendra Singh Rajawat
Advocate, Jaipur
22623 Answers
31 Consultations

4.4 on 5.0

There is a catch to trap him again, its a technical thing i can tell you, see such MOU has no value as stated by apex court moreover if he withdraws his consent in second motion he can be penalised and punished for creating mental agony, trap him properly

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1.  You committed a great folly and hence it is quite natural that your husband is trying to take advantage of the situation.

2. Since your marriage s already fixed then forget the remaining money and go for mutual divorce.

3. otherwise you may have to waste several years of your precious life running around the court room. 

Devajyoti Barman
Advocate, Kolkata
22815 Answers
488 Consultations

5.0 on 5.0

You can only go ahead with your marriage after divorce and expiry of appellate period. It's not proper to hastily proceed. If you want to contest you can take objection before the same court for withdrawal of the terms. 

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

1. It was ill conceived on your part to withdraw your DV case prior to the mutual divorce being granted by the court.

2. Court cannot grant mutual consent divorce unless both spouses appear on the second motion and reiterate their consent to end the marriage. So the court will eventually dismiss the MCD petition if he does not appear for second motion.

3. You will be free to file a divorce petition unilaterally on the ground of cruelty once the MCD petition is dismissed.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Dear Madam 

You can file an application for breach of trust in the adjucating Court and the defaulter would be noticed.

This is one of methods to get relief 

Anand Shukla
Advocate, New Delhi
666 Answers
14 Consultations

4.9 on 5.0

Yes you are in difficult position as your marriage is fixed and it is known to your husband. Because your divorces is pending during this period you cannot get married and he is taking advantage of this situation as you have withdrawn all the cases against him including the complaint in the army now you have to go for the compromise so that you can get the divorce and go for marry even if he is not agree to pay the amount otherwise your divorce will be contested divorce and that will be going to take lot of time of course

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

See you cannot force him to pay , you can just restore your cases , he can withdraw consent and you have to file for contested divorce without his consent divorce cannot be granted mutually.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

The following judgments may kindly be  read:

In Hitesh Bhatnagar (supra), both husband and wife had filed mutual
divorce petition. After the passing of the first motion petition the
wife withdrew her consent before the decree of divorce could be granted.
The husband insisted for passing of the decree and the matter travelled
up to Supreme Court. The Supreme Court framed the following question
to be determined "Whether the Court can grant a decree of divorce
by mutual consent when the consent has been withdrawn by one of the
parties, and if so, under what circumstances".
43. The Court answered the above mentioned question in the following
words:-
CONT.CAS (C) 559/2011 Page 21 of 34
"15)......... Besides, from the language of the Section, as well as
the settled law, 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 a 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. Otherwise, in our view, the expression
divorce by mutual consent would be otiose.
16) In the present fact scenario, the second motion was never made by
both the parties as is a mandatory requirement of the law, and as has
been already stated, no Court can pass a decree of divorce in the
absence of that. The non-withdrawal of consent before the expiry of the
said eighteen months has no bearing. We are of the view that the eighteen
month period was specified only to ensure quick disposal of cases
of divorce by mutual consent, and not to specify the time period
for withdrawal of consent, as canvassed by the appellant."
44. In neither of these cases the Supreme Court was dealing with the
issue, whether the breach of an undertaking given to the Court in terms
of a settlement arrived at between the parties, to grant consent for
the second motion petition, would amount to civil contempt, or not
. A party is not bound at the stage of moving the first motion petition
to give an undertaking to the Court that he/she shall grant his/her
consent for moving a second motion petition as well. The law gives
both the spouses the right to opt out of the divorce proceedings, and
not to give their respective consent to proceed with the second motion.
In the present case as well, it was open to the respondent not to
have given her undertaking to the Court, that she would give her consent
to CONT.CAS (C) 559/2011 Page 22 of 34 move the second motion petition.
However she did, as a matter of fact, give her undertaking to
the Court to this effect. She gave this undertaking on account of heContempt
Indian Kanoon 1
r settlement with the petitioner wherein she received a substantial amount
of Rs.1.5 crores from out of the total settlement amount of Rs.
7 crores. Had she not agreed to give the said undertaking and, in fact,
not given the said undertaking to the Court, obviously the settlement
agreement would not have been acted upon by the petitioner and he
would not have paid the said amount to the respondent which she accepted,
pocketed and appropriated.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
For holding the respondents to have committed contempt, civil contempt
at that, it has to be shown that there has been willful disobedience
of the judgment or order of the Court. Power to punish for contempt
is to be resorted to when there is clear violation of the Court's order.
Since notice of contempt and punishment for contempt is of far reaching
consequence, these powers should be invoked only when a clear
case of willful disobedience of the court's order has been made out.
Whether disobedience is willful in a particular case depends on the
facts and circumstances of that case. Judicial orders are to be properly
understood and complied. Even negligence and carelessness can amount
to disobedience particularly when attention of the person is drawn
to the Court's orders and its implication. Disobedience of Court's
order strikes at the very root of rule of law on which our system of
governance is based. Power to punish for contempt is necessary for the
maintenance of effective legal system. It is exercised to prevent perversion
of the course of justice. In his famous passage, Lord Diplock
in Attorney General v. Times Newspapers Ltd. (1973) 3 All.E.R. 54
said that there is also "an element of public policy in punishing civil
contempt, since administration of justice would be undermined if the
order of any court of law could be disregarded with impunity". Jurisdiction
to punish for contempt exists to provide ultimate sanction
against the person who refuses to comply with the order of the court
or disregards the order continuously. Initiation of contempt proceedings
is not a substitute for execution proceedings though at times that
purpose may also be achieved.
No person can defy Court's order. Wilful would exclude casual, accidental
bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of Court's
order must allege deliberate or contumacious disobedience of the
Court's order.
In Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010 [2]
,
Rama Narang Vs. Ramesh Narang & Anr., reported at (2006) 11 SCC 114,
it has been held by the Supreme Court of India that even in the absence
of undertaking in appropriate cases, defiance even of a compromise
decree may be contemptuous if the conduct is found to be interfering
in the due course of justice. It has also been held in the case of Santanu
Chaudhuri Vs. Subir Ghose, reported at (2007) 10 SCC 114 that
even without an undertaking a contempt may be made out when the Court
has acted on the basis of a representation of a party. In this case
not only the order dated 23.10.2007 read with orders dated 8.1.2008 and
15.2.2008 would show that the Court had disposed of the bail petitioners
on the basis of a settlement between the parties. A complete reading
of the order would show that the parties were bound to comply
with the obligation as per the settlement.
References
1. a, b Avneesh Sood vs Tithi Sood on 30 April, 2012
2. a, b Shikha Bhatia vs Gaurav Bhatia And Ors on 13 May, 2010

 

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

For time being make a drama of second marriage cancelled and let this advertising be in full force that everyone should feel like it's true. Except you and your fiancee should know that this is a drama. Only two person knowing that this is drama i.e. You and your fiancee.

 

Till you get remaining 5 lacs rupees. Once you receive this than you can fix your second marriage post.

 

Why drama because your ex husband knows that your second marriage is fixed that's why he will not pay and once you get remarried than you don't have any rights to ask money.

Ganesh Kadam
Advocate, Pune
12926 Answers
255 Consultations

4.9 on 5.0

- Get the complaint re-instate against him with reference to the MOU terms violation to his office and family court. If you finance has the recording of call then file defamation case against him with a heavy penalty.

- You must not bend against illegal demand and contest the matter on merit.

 

 

Regards

 

Vivek Arya

Retired Lawyer
Advocate, Gurgaon
767 Answers
6 Consultations

5.0 on 5.0

It was held that section 13 B of the Hindu Marriage Act (that provide for mutual consent divorce) gives the right to either party to withdraw consent at any stage before the grant of decree of divorce. This is a statutory right of either party in terms of Section 13 B of HMA. In simple words, consent can be withdrawn by either party at any stage before the passing of the decree of divorce.  you can file fresh contested divorce on grounds of mental creulty. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You have to decide about the next course of action.

You should not have hurried to fix your second marriage, at least you should have kept it as a secret.

You may decide to not to withdraw the 498a case  and also dont give him divorce if he is not willing to pay the balance amount or if you consider that your second marriage is important then you may have to ignore the balance amount and proceed with the mutual consent divorce without the balance money.

If your proposed second marriage has a prospective future then just ignore this balance amount and proceed with the disposal of the current divorce case amicably

T Kalaiselvan
Advocate, Vellore
84890 Answers
2190 Consultations

5.0 on 5.0

- As per law, Divorce by mutual consent is final and binding , and thus cannot be challenged in any Court by either of the parties .

- The basis of such divorce is mutual consent and since both parties consented to the divorce, they cannot breach the agreement and decisions.

-If he will try to breach the agreement , and decision of the case, then it will be considered as Contempt of the court.

- Since, after First motion , he is threatening you to withdraw his consent in the Second motion , then you should inform for the same before the court .

- Further , he is bound with the contents /conditions of the MOU executed between both the parties, otherwise this MOU will be cancelled automatically. 

- And further , on the ground of fixing your marriage , he cannot be allowed to breach the MOU and the statements given at the time of FIrst motion. 

- Dont withdraw any cases now , and inform the court /organization at the time of quashing of FIR under section 498A , if till date no withdraw by you. 

- He is bound to pay you as per MOU signed by him , otherwise, all the withdrawn cases against him will be restored once again on this ground . 

Mohammed Shahzad
Advocate, Delhi
13211 Answers
198 Consultations

5.0 on 5.0

You should ask him to withdraw the consent and tell him that you have called off the marriage with that person just to threat him. 

then file a case for maintenance and permanent alimony against him again because he is withdrawing the case and not you. 

Don't give him consent for withdrawal of FIR case. Let the case proceed against him.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer