• Is ex-party decree better or mutual consent divorce

Dear Experts,
I got married 8yrs back after 2yrs of married life, my wife and me living separately due to her extramarital affairs before/after marriage. She has been living in abroad (US) and not willing to come back, also we have one baby girl and her age 6yrs now and she left with her parents in Hyderabad. I waited for 4yrs to handle the situation through elders but nothing happened, and also her parents don't want to bring her back but same time not ready to give divorce. 
finally i got frustrated and approached legal system filed divorce 2yrs back  but till now unable to serve the notice to her, as her parents opposed to take the notice as she is living in abroad, then i found her address by searching in social media and sent notices to abroad but unable to serve. Her parents kept one secret lawyer in court to find-out how things are process in court and getting alerted before do something.
Also  court has sent the  notices through Indian embassy in US but still unable to serve the notice, recently new judge has appointed and she has given directions for paper publications however she did not disclose on which paper the matter should publish. Our advocate has mentioned in next hearing after 3 months will be suggested, post that we can give the publications and am waiting for next hearing.

Recently respondent advocate came to our advocate and asked for one time settlement, mutual consent divorce and remove all allegations. My advocate is also suggested go for this option instead of fighting for justice. During discussion has mentioned that they will not bring respondent from US but there is process to give authorization to her father and do the process and get the divorce, also mentioned that i have already filed the divorce 2yrs ago that will convert into MCD and the divorce will issue in 1 month.
Asked me to arrange the one time settlement amount, i have informed the money is ready and asked to initiate the next steps, now my advocate is saying,  we will need to file a new petition for MCD and it will take 6months process. however while filing the respondent father will appear not respondent. also asking me to withdraw the petition which i filed 2yrs ago and it is in paper publication state. I am in confusion what to do now.

1. Shall I continue with contested petition 2yrs back
or withdraw my petition and file a new MCD as my advocate suggested?
2. Is it possible without respondent (father will attended) getting MCD? 
3. Suppose after i withdraw my contested petition, they are not ready to give MCD what will happen to my previous petition? can i request to re-consider?

Please give me some suggestion how i should deal with this situation.
Asked 1 year ago in Family Law from Hyderabad, Telangana
Religion: Hindu
1. Shall I continue with contested petition 2yrs back
or withdraw my petition and file a new MCD as my advocate suggested?
Since you have already filed the divorce case and stated to have waited for almost  two years, it is better not to go for compromise or  one  time quit settlement,because they now came to know that it will not be possible for her to comeback to India and contest the case, they just want to make some quick money out of the situation taking advantage over your urgency or helplessness.  First you change your lawyer because he hasn't done any favor to you, in fact the divorce case what you have filed has almost come to a final stage i.e., exparte  and evidence thereon  after newspaper publication for serving the summons to her by substituted service.  So Better go ahead with present divorce petition itself instead of having a wavering mind .


2. Is it possible without respondent (father will attended) getting MCD? 
Her father can sign the papers for the first time but she has to be present for the second motion to give her evidence before the court in person.  There is a risk in it that if she claims that she has not executed a power of attorney deedat all and she never gave her consent for divorce, then the entire process will start from beginning. 


3. Suppose after i withdraw my contested petition, they are not ready to give MCD what will happen to my previous petition? can i request to re-consider?
Anything can be possible. If she withdraws her consent at the last moment, then you will stand losing your valuable time, money and energy as well as you will be put to a greater insult, further you have to look for fresh grounds for filing a divorce against her.  Dont take any decision in a hurry, take time  and take wise decision patiently. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. If mutual divorce happens then there is no need to proceed with your present case. However unless and until the lay signs the mutual divorce petition do not withdraw the present case.
2. Practically it can be done but most courts insist on presence of party only. So check what the local court does in such situation.
3. Your previous case has gone an if mutual divorce does not happen then you have to file contested suit afresh.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. Mutual Divorce is the most hassle free process under the Indian law to end a marriage, but this requires both the parties to reach an agreement on all the issues. It also requires mutual trust in each other's intentions. Unless you are sure that your wife will not back out of mutual divorce proceedings, you should continue your divorce petition. Since notices have been ordered to be published the maximum time frame that you are looking at for the decision is 3-4 months.

2. It is possible for the respondent's father to attend the court along with her lawyer.

3. If mutual divorce fails you will be left with no option but to file a fresh petition for divorce. No re-consideration will be done.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) you don't need to file fresh petition for divorce by mutual consent 

2)the existing petition can be converted into petition for divorce by mutual consent 

3) your wife can execute power of attorney in her father name 

4) if there are video conferencing facilities available in court wife can give her consent on date fixed by court for second motion 
Ajay Sethi
Advocate, Mumbai
23363 Answers
1222 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

1. Shall I continue with contested petition 2yrs back or withdraw my petition and file a new MCD as my advocate suggested?
Opinion: Withdraw the divorce petition and filed MCD, it is the best way to get divorce.

2. Is it possible without respondent (father will attended) getting MCD? 
Opinion: Through power of Attorney, it is possible.

3. Suppose after i withdraw my contested petition, they are not ready to give MCD what will happen to my previous petition? can i request to re-consider?
Opinion: No, this petition will not be consider but you may file another fresh petition before the court with the allegation of cruelty which committed by the respondent for this type of settlement talk.
Feel Free to Call after pay the consultation fee.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Hi,
You don't have to withdraw contested divorce petition, only have to convert it into a Mutual consent divorce application. your lawyer has to prepare a conversion application in which you both have to mention your consent terms ie; mode of settlement, custody of child, visitation rights etc.Since already contested divorce petition was pending before the court, MCD will be immediate, no need to wait for 6 months period.
Your wife's presence is required for mutual consent divorce.
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
Hi, One thing you must remember without presence of Respondent court will not grant the divorce petition so presence of the Respondent is very must so ask the Respondent to come to India and file a petition for divorce on mutual consent.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) in the event wife changed her mind  withdraws her consent petition for divorce by mutual consent would be dismissed

2) you would have to file fresh petition for contested divorce 
Ajay Sethi
Advocate, Mumbai
23363 Answers
1222 Consultations
5.0 on 5.0
1. Once your existing suit is converted into MCD the previsions suit becomes non -existent and you can not again go back to the contested suit if the MCD does not happen.
2. If the wife does not turn up on MCD final motion then after expiry of 12 months the said suit will get automatically dismissed.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Hi,
It is common sense that once you convert a petition into some other form, the original can not survive. The MCD from the date of presentation till eighteen months is valid in between which parties have to decide.
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
Once a petition for contested divorce gets converted to MCD, the previous petition stands dismissed as withdrawn, therefore there is no question about that petition now.  In the MCD if one party withdraws the consent at the second motion, the petition will stand dismissed and the original petitioner may file a fresh petition for contested divorce.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
If respondent does not present herself at the 2nd motion the mutual divorce case will be dismissed, in which event you will have to file for divorce afresh.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Hi, Suppose if she does not come up for 2nd motion then again you have to file petition for divorce so better file a  separate petition for divorce  on mutual consent.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0

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