• Second Motion not done

We had filed a case for "mutual divorce" in Jan 2017, the other party (the girl) did not appear for "second motion"
more than 3 times till date, Although I visited court since then the application is being applied from both sides.
from the past 6 months in NOV 2019, I have been in relation with another girl, but not living together.
Second-party somehow got to know about this relation somehow.
I want to know what can be the further actions the second party can take against me?
Asked 4 months ago in Family Law
Religion: Hindu

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32 Answers

Hello,

living with some other girl is not a crime. 
ahe can at max not give consent in mutual consent divorce and may then file a divorce on the ground of mental cruelty and may claim alimony thereafter. 

Regards

Anilesh Tewari
Advocate, New Delhi
17791 Answers
296 Consultations

5.0 on 5.0

Hi

There are no such severe legal action that can be taken against you.

Yes this could be the ground for divorce. 

Thanks

Rahul Jatain
Advocate, Rohtak
4059 Answers
4 Consultations

4.9 on 5.0

Your spouse can withdraw her co se t for divorce by mutual consent 

 

2) your divorce petition would be dismissed 

 

3) you would have to file fresh contested petition for divorce on grounds of mental cruelty 

Ajay Sethi
Advocate, Mumbai
76984 Answers
4621 Consultations

5.0 on 5.0

See they cannot file any case as such based on the relationship though wife can file contested divorce on ground of cruelty also she can withdraw consent from mutual divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25208 Answers
105 Consultations

5.0 on 5.0

Either party can withdraw consent anytime before order passed. And about your relation, no action agaisnt you.

She can withdraw her consent and claim more releif agsisnt you on the ground of adiltery.

 

Yogendra Singh Rajawat
Advocate, Jaipur
20151 Answers
28 Consultations

4.5 on 5.0

It will be disposed off. Exparte orders are not passed in mutual consent divorce

Prashant Nayak
Advocate, Mumbai
20593 Answers
38 Consultations

4.4 on 5.0

She can only file the contested divorce after withdrawing her consent from mutual consent. 

Regards

Anilesh Tewari
Advocate, New Delhi
17791 Answers
296 Consultations

5.0 on 5.0

Yes she can withdraw her consent from mutual divorce and file divorce on ground of cruelty and adultery.

Shubham Jhajharia
Advocate, Ahmedabad
25208 Answers
105 Consultations

5.0 on 5.0

Your spouse cannot take any legal action against you for your acts of adultery or extra marital affairs with another female.

If she is not appearing before court on the next date of hearing and if the period of 18 months in between first and second motion is completed then the court may dismiss the mutual consent divorce petition.

You can then file a contested divorce case on the grounds of cruelty.

T Kalaiselvan
Advocate, Vellore
66988 Answers
884 Consultations

5.0 on 5.0

She cannot do that becasue there is already  a divorce case pending before a court of law, hence before withdrawing the pending case she may not be able to file a fresh case for divorce even on the grounds of cruelty.

.

 

T Kalaiselvan
Advocate, Vellore
66988 Answers
884 Consultations

5.0 on 5.0

During subsistence of present  petition for divorce by mutual consent fresh petition for divorce cannot be filed by your wife 

Ajay Sethi
Advocate, Mumbai
76984 Answers
4621 Consultations

5.0 on 5.0

1. a case of mutual consent divorce cannot exceed from a stipulated time of 18 months but from the query post by you, it seems that the case is pending since last 38 months, which is not possible,

2. if the facts are correctly posted by you?

3. However, your relationship with other girl is no criminal offense rather a ground of divorce for your wife, and she can file a divorce petition on the ground of mental cruelty and adultery, subject to proof.

 

 

 

Suneel Moudgil
Advocate, Haryana
2166 Answers
3 Consultations

4.7 on 5.0

1. A MCD gets dismissed for default automatically after 18 months if second motion remains unsuccessful. 

2. Now as adultery is no more a crime no case lies against you. 

3. However if this adultery is brought to record then in the event you file contested suit for divorce the decree of divorce is unlikely to be allowed. 

4. On this ground she can indeed file case for divorce which you should pray to happen. 

Devajyoti Barman
Advocate, Kolkata
20791 Answers
296 Consultations

5.0 on 5.0

1. The second party can take no tangible legal action for your developing relationship with another girl.

 

2. You can al;so live together with her without marrying her which will no longer be treated as crime as per IPC.

 

3. Your MCD application will be rejected if she fails or refuses to appear within 18 months from the date of its filing. 

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

1. She has already jointly file MCD.

 

2. So, her filing divorce suit afresh now will not be maintainable.

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

Yes 

She can

Once she files the divorce case based on the mental cruelty then this mutual consent divorce case automatically stands withdrawn. 

Thanks 

Rahul Jatain
Advocate, Rohtak
4059 Answers
4 Consultations

4.9 on 5.0

The expression 'mutual' cannot be diluted and if any of the parties to the marriage fail to present herself or himself before the court, after the presentation of the 1 st and the 2nd motion petitions, then there will not be any mutuality in the act of the parties. Mere signing and filing of the present petition by both the parties does not mean that the parties need not present themselves before the court after filing the divorce petition. The parties are necessarily required to appear before the court to give their statements and then based on the statements and upon satisfaction of the Court, first motion petition will be allowed. A close reading of section 13-B of the Hindu Marriage Act, 1955, makes it amply clear that a divorce by mutual consent can be granted only if both the parties appear voluntarily on the First motion as well as on the Second motion.

If he/she  is delaying to give a statement or appear before the court, under such circumstances neither you nor the court can compel him to appear and make a statement.

However, at this stage you can only take an adjournment till 18 months (maximum) and in the meanwhile you make efforts out of the court to convince your spouse to come to the court and give the statement.

Even after making efforts, if your wife does not agree to appear, then the option available to you is to withdraw the petition and file a petition under different grounds as enumerated under Section 13(1) of the Hindu Marriage Act.

Ajay N S
Advocate, Ernakulam
3478 Answers
69 Consultations

5.0 on 5.0

Not without withdrawing MCD.

Yogendra Singh Rajawat
Advocate, Jaipur
20151 Answers
28 Consultations

4.5 on 5.0

She can file any false case its imperative that she needs to prove the same in court

Prashant Nayak
Advocate, Mumbai
20593 Answers
38 Consultations

4.4 on 5.0

1. Live in with another woman is not an offence as Section 497 IPC has now been struck down by the Supreme Court as unconstitutional.

2. Your wife can certainly file for dissolution of marriage as adultery by spouse is mental cruelty under HMA.

Ashish Davessar
Advocate, Jaipur
29804 Answers
856 Consultations

5.0 on 5.0

Either of the parties to MCD can withdraw their consent.

Its been more than three years, as such, due to non prosecution it could  be dismissed. 

She cannot file another application for same relief i.e., divorce during pendency of MCD, and that, till disposal of present MCD due to non prosecution she has to wait.

Upon dismissal of above MCD, she / you can file petition for divorce under cruelty.

 

S Srinivasa Prasad
Advocate, Hyderabad
2518 Answers
8 Consultations

5.0 on 5.0

Q. Can she file a divorce case on the ground of mental cruelty, aside from the current Running "Mutual Divorce" case?

Ans. She will have to withdraw her consent and then file/initiate contested divorce proceedings against you, on the strength of your extra marital relation.

Vibhanshu Srivastava
Advocate, New Delhi
9055 Answers
167 Consultations

5.0 on 5.0

Dear Sir,

She may withdraw from the case, but you are suggested to get the case of mutual consent dismissed on the reason of non-cooperation from her side and then file the case of divorce on the grounds of cruelty against her. 

Ganesh Singh
Advocate, NEW DELHI
5435 Answers
10 Consultations

4.5 on 5.0

Adultery is not an offence anymore. But it may affect your chances of getting a divorce easily as she may demand higher sums of money. She may also cite your infidelity as one of the causes of divorce.

Rahul Mishra
Advocate, Lucknow
9795 Answers
18 Consultations

5.0 on 5.0

Both the cases cannot be filed together. She has to choose between the two of them.

Rahul Mishra
Advocate, Lucknow
9795 Answers
18 Consultations

5.0 on 5.0

Dear Sir,

The living in relationship with another lady who's well aware of the divorce case pending during the court proceedings can workout as an advantage because the wife who is resisting the divorce case may agree for divorce by mutual consent, knowing it well that her chance to returning back may not be possible so best course is to get out of the relationship after taking permanent alimony and maintenance.

Netravathi Kalaskar
Advocate, Bengaluru
4953 Answers
26 Consultations

4.8 on 5.0

You are very much confused in it. Mutual divorce and contested divorce, both are form of divorce. If you are progressing on mutual consent divorce then it is enough. There is no mental cruelty if you are having an affair with someone else. Relax and take divorce ... Enjoy life. 

Gopender
Advocate, New Delhi
168 Answers

4.9 on 5.0

1. If mutual consent divorce petition is filed and only second motion is pending then your wife cannot take any other legal action against you if you have not committed any offence against her after filing of petition.

2. No your wife cannot file other divorce petition on ground of mental cruelty during pendency of MCD petition.

Mohit Kapoor
Advocate, Rohtak
9322 Answers
3 Consultations

5.0 on 5.0

she can file Domestic violence against you. 

 

Mohammed Mujeeb
Advocate, Hyderabad
17336 Answers
11 Consultations

4.5 on 5.0

if mutual divorce case is dismissed then she can file divorce on the ground of mental creulty. 

Mohammed Mujeeb
Advocate, Hyderabad
17336 Answers
11 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.

- Since, you applied for divorce in Jan 2017 and were given cooling period of 6 months, then now you cannot move your petition for second motion as per law. 

- She cannot take any legal step against you for your relation with another girl, because Supreme court declared that , when  a man and a woman in love live together , is part of the right to life and not a criminal offence, and further live-in relationships is legal in India.

- Yes, she can file a divorce case against you on the ground of your relation with another girl. 

- Further she cannot go beyond the First motion statement before the court, it means, now she cannot take any other fresh ground like cruelty against you in her case. 

Mohammed Shahzad
Advocate, Delhi
4184 Answers
43 Consultations

5.0 on 5.0

Dear Querist

Adultery is not an offence now as the Hon'ble Supreme Court declared adultery under section 497 of IPC, unconstitutional.

hence she can file a case against you before the family court for divorce based on cruelty but the mutual consent divorce is useless now. as there is a limitation for completion of mutual consent divorce which is 18 months from the date of the first motion which is already lapsed.

 

so it will be better to file a divorce case against her before Family Court based on cruelty.

 

Feel Free to Call

 

Nadeem Qureshi
Advocate, New Delhi
5740 Answers
268 Consultations

4.9 on 5.0

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