• Husband not coming for second hearing in Mutual Consent Divorce

I filed a 498a case against my husband and after 6 months, we both applied for mutual divorce, MOU was signed by both the parties, he returned all the sthreedhan items and paid half of alimony at the time of filing divorce petition.
Now is not coming/responding for second hearing and want to reconcile with me but I wanted to move on and start a new life. Iam thinking of applying for a contested divorce
My questions.
1. How can I close this Mutual divorce petition.?
2. It's been two years since the separation, I left my husband and now living with my parents and can I file divorce on the grounds of desertion.??
3. I have a phone call recording wherein he abused me verbally and asked for divorce, I have no other evidence against him except this, to what extent it is admissable.??
4. During our conjugal life, everymonth I transferred my salary to his account, he used to ask my salary everymonth citing some financial necessity, Can I show these statements against him in court to prove cruelty..??
5. He said he can delay the contested divorce to the maximum possible time, what can i do for fast trails and completion of case..??
Asked 2 years ago in Family Law
Religion: Hindu

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10 Answers

1) husband presence is must at time of second motion 


2) if he fails to appear at time of second motion court can dismiss your petition 


3) if petition is dismissed or with drawn you can file for divorce on grounds of mental cruelty 


4) call recordings are admissible in evidence 


5) you can rely upon bank statements to prove mental cruelty 


6) contested divorce proceedings takes years to be disposed of 

Ajay Sethi
Advocate, Mumbai
90341 Answers
6612 Consultations

5.0 on 5.0

Dear Ma'am,

As such since the second motion hasn't happened, he can withdraw consent. But, I am hoping you haven't withdrawn the 498a case already. Then this 498A case goes on and will create some pressure on him to comply with the MoU. If the 498A case already been charge sheeted then it further creates better pressure. 

Divorce on grounds of desertion can only be filed when your spouse deserts and not the other way around as is the case in your matter. You can file divorce under the grounds of cruelty. That phone call recording is what is what determines the standing of it in court. As such it is admissible as electronic evidence but the gravity it brings to your case and makes your case stronger can only be adjudged after knowing its nature. 

You can show the financial statements under Domestic Violence Act as it amounts to economic abuse. 

Contested Divorce as well takes time relatively more than mutual consent and his power to cause delays will only be limited 2 adjournments at each stage if your advocate is diligent enough. 

I am an advocate based out of Hyderabad as well, you can contact me for further queries. 

Sanjay Narayandas
Advocate, Hyderabad
103 Answers

5.0 on 5.0

it will be dismissed if the husband remans absent and you need to file a contested divorce in that case

yes you can file divorce on desertion ground

yes it will be admissible under electronic evidence with 65 B certificate under evidence Act

yes you can prove cruelty with that

no he cant delay the same by his absenteeism but can delay a while by filing frivolous applications before court

Prashant Nayak
Advocate, Mumbai
28979 Answers
109 Consultations

4.1 on 5.0

Dear Client, 

You may appease your husband in this.

Jaswant Singh
Advocate, Gurugram
929 Answers
2 Consultations

4.8 on 5.0

  1. There is no need to close mutual divorce proceeding. It is automatically dismissed if any party did not attend the court, it will be dismissed, no other option for the Court.
  2. You can file divorce on desertion and cruelty.
  3. Any call recording and whatsapp message are very much admissible in evidence as valid proof.
  4. Extorting salary of wife is sure proof of cruelty. You can establish that by documentary proof of bank transactions.
  5. He indeed can delay the divorce proceeding, but can force him pay hefty maintenance during divorce proceeding that will force him to settle with you.

Ravi Shinde
Advocate, Hyderabad
3605 Answers
42 Consultations

5.0 on 5.0

1. If he is not turning up for the second motion then you can inform court to dismiss the divorce petition filed on the grounds of mutual consent with leave of the court to permit you to file a contested divorce by filing a memo to this effect.

2. Yes, you can file the contested divorce on the grounds of desertion and cruelty.

3. The phone call recordings are not admissible as primary evidence in court, however you can mention about the same in the pleadings in the divorce petition.

4. You can mention that also as an act of cruelty due to which you were forced to transfer your salary to his account every month.

5. You have to go by the court in the trial proceedings, he cannot drag the case endlessly. 

T Kalaiselvan
Advocate, Vellore
80511 Answers
1729 Consultations

5.0 on 5.0

1. If one of the parties does not come then the mutual divorce would fail.

2.Yes along with ground of mental cruelty as well.

3. Yes.

4. Yes

5. You can get speedy disposal order from high court to w thwart the dilatory tactics. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
424 Consultations

5.0 on 5.0

Dear Maam,

1) If the husband does not come for the passing of the second motion, the court will have to dismiss the petition.

2) You can file for divorce on ground of cruelty, It will be in your favor if you have not withdrawn case under 498A. As you left the house of your husband, you cannot claim desertion as ground for divorce.

3) Yes recording is admissible as evidence.

4) Yes you can show the financial statements to prove cruelty.

5) Contested divorce proceeding will take longer when compared to mutual consent divorce but you can build pressure on husband by the cruelty case and maintenance.

The court won't allow husband to unnecessarily drag proceeding.

Thank you

Anik Miu
Advocate, Bangalore
6092 Answers
66 Consultations

4.9 on 5.0

- As per law , for mutual content divorce both parties appearance before the court for recording statement is mandatory .

- Further, either of the party can refuse to go forward for mutual divorce .

1. If he is not coming for second motion even after completing 6 months period , then you can file contested divorce on the ground of cruelty and other grounds. 

2. Yes 

3. Yes, it is admissible 

4. Legally , husband cannot claim any right over the income of wife and her gift/property / assets etc , and hence you can show that transfer amount as cruelty. 

5. He cannot delay the proceeding , if you will approach the court diligently. 

- Further , if he will not appeared before the court on the fixed date of hearing , then court can grant ex-parte divorce decree against him. 

Mohammed Shahzad
Advocate, Delhi
10835 Answers
136 Consultations

5.0 on 5.0

You can ask the court to call for his presence in the court and in case he doesn’t turn up the same can be done through his counsel, thereafter you can file a divorce petition and take grounds of desertion and cruelty with your evidence which is not bad . Can also site his non appearance from second motion as another act of cruelty to harass you.

Amit Bhanot
Advocate, Chandigarh
10 Answers

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