I am in the process of a mutual divorce petition where I am required to pay the alimony and maintenance amount at the time of initial filing of the petition. I would like to know what options will I have if my wife withdraws the consent in the final motion and wants to continue the marriage. 1) Will court direct my wife to payback the alimony amount that I have transferred to her? 2) Will I need to file a 420 case against my wife to get the money back? 3) Should I add some clause in my divorce petition to avoid this situation?
Why will you pay her in advance
When you sign mutual petition give her fifty percent of the said amount and rest fift percent on day of final hearing.
It seems you have a money tree, deal it properly, do it at every step so that she leaves and you are free, withdrawing consent will not arise.
If you're paying initial amount via court than no need to worry about it because you have evidence of court receipt. Do that much amount will be deducted.
Plus you can mention all your terms and conditions in the MoU of Mutual Consent Divorce. If your wife accept MCD than same will become court order. Because already first motion is running in the court.
You can request court that all alimony and one time maintenance amount will be paid in the court smd not directly to wife's or her attorney hands.
The consent terms captures the terms of settlement and all issues pertaining to give and take, as such, you need to make payment of permanent alimony by way of Demand Draft drawn in favor of your wife and capture the details of the said payment in the consent terms.
Based on which, MCD will be granted.
As apprehended by you, if she backs out after taking alimony and withdraws her consent, court will grant divorce to you for misrepresenting before court.
1. No
2. Yes
3. You should make the final payment on the date of the second motion or you may pay the payment by means of a post-dated cheque so that she may only present the same after the second motion or you can give a DD on the date of the second motion.
It is advised that you make the payment on the date of the second motion.
regards
Clause in petition should be that 10 per cent would be paid at time of filing of petition and balance amount at time of second motion
2) if you pay entire amount and wife withdraws her consent you would have to file case of cheating against your wife
1. Amount of alimony once paid to wife under any circumstances can not be directed by court to return.
2. Yes but this case would not stand.
3. Yes you can but if she refuses to cooperate later then your money would go.
1. Yes
2. No. A simple recovery suit would suffice.
3. She can withdraw her consent before the final motion irrespective of the fact that any clause in the mutual consent divorce petition status otherwise. Consent of both the parties during the both motions for divorce is paramount.
1. Yes you can if the IM is on conditions of mutual divorce.
2 yes can you file 420 ipc as well as contempt petition.
3. Yes you can depending on your entire case with help of your lawyer
1. That will a legal battle to take money back. So pay on the date of second motion.
2. May be yes.
3. Yes.
Dear Sir/Madam,
You are suggested to add suitable clauses in the divorce petition that the said consent can't be withdrawn and also it is informed that in case of withdrawal of consent after taking alimony is nothing but cruelty on the part of wife and the case can be filed against her for this reason.
1. The court will not direct your wife to return the amount she had taken from you in the name of settlement.
You only have to take steps to recover the amount through legal steps separately.
2. No, you may have to file a money recovery suit on the basis of the evidences you have to support your claim.
3. No such clauses will come to your rescue, you may have to make arrangements accordingly so that she do not misuse the situation at a later stage.
You should NOT pay any money upfront. A clause must be added in the mutual consent divorce petition that the money in full shall be paid at the time of the secon motion before the court where she will consent to the divorce.
There are many cases wherein wives run away with the money and don't appear during the second motion.
Moreover you may make an escrow account wherein payment shall be made once mutual obligations have been performed.
1. No , court cannot direct her to refund the payment alimony amount by you, if she refused for second motion .
- You should not pay entire amount in one go , better to enter into an agreement with her , and submit the same with the First motion petition before the court.
2. Not maintainable , except her case will weaken on this ground.
3. Yes
Yes. And you can file contmept pettiion agaisnt her if she do not return.
Not 420 but contempt.
Include in petition that you are giving her alimony as a settlement for MCD. If she refused for MCD after receiving alimony, she will hold for contmept of court.
Dear Client,
You may pay the amount in the Court itself. She can not deny.
if the amount is paid at the time of filing and later on she withdraws consent, then she will not be permitted to do so due to the doctrine of estoppel which says that once you make a representation to another person and that person alters his position, then the first named person cannot back out. So your wife cannot back out. If she does then she will have to return the amount to you with interest which you can ask the court to direct her by filing an application for it
Hi,you can recover the money by filing a civil suit for recovery in court also we can file a criminal complaint under section 420 crpc
1 don’t make the payment of full amount of alimony at the stage of first motion itself.
at this stage, pay only a token amount and let the final and major disbursement of alimony take place at the stage of second motion
1. Yes, she can just continue to stay absent on the day of the 2nd hearing and its extensions after taking the alimony. Your MCD petition will be rejected after 18 months from the date of its filing if both the parties fail to appear before the Court on the day of the 2nd motion. The Court will not direct your wife to pay back the alimony. You shall have to file a Recovery Suit against your wife which will take around 10 years to be disposed of.
2. & 3. You should add the clause that the entire money will be paid on the day of the 2nd motion at the Court or the DD shall be deposited with the Court to be returned to you in case she refuses to appear on the day of the second motion.
if you and your wife had entered into a settlement agreement while filing the divorce by mutual consent whereby the amount of maintenance was mentioned and other terms and conditions of separation were enumerated, then you can initiate a contempt of court proceedings against the wife.
1. She can withdraw the case after taking alimony and in that case you can file divorce petition under section 13 HMA against your wife.
2. That alimony will he treated as already paid in divorce filed by you and you will not have pay maintenance or alimony again.
1. You should pay the amount in parts and major amount amount should be paid at final stage of divorce.
The court will not direct her to pay alimony back in the same case you have to file separate suit to recover the amount.
