me and my wife agreed for mutual divorse for 8 lakhs, is it safe giving the post dated cheque at the time of filing the mutual divorse ? please advice me. and other thing is her lawyer insisting me for post dated cheque, and he is saying that the court will not take into consideration of file with put the cheque, is it mandatory ?
1) in the consent terms mention amount of Rs 8 lakhs would be paid at time of second motion of mutual consent divorce .
2)dont give any post dated cheque . what if your wife does not turn up at the time of second motion
3) in such a case your petition would be dismissed and she may encash the cheque too .
Dear Querist
There is no problem to give post date cheques against the mutual consent divorce but it should be mentioned in MOU if any or mentioned in the statement of the opposite party before the court.
1. Instead of giving a post dated cheque you may give her the agreed amount in cash when she turns up for the second hearing in the court.
2. Giving a post dated cheque is fraught with the risk of you losing your money and the mutual divorce not materialising.
1. Well court never bothers about the monetary transaction. So giving a cheque is never a mandatory practice.
2. If you have agreed on the quantum of money then you can think of giving a PDC once the final hearing of divorce is done.
you should pay the balace amount cheque or DD at the time of recording for second motion
Mention in clear terms about payment of agreed amount, by any mode, at the time second motion only. Avoid giving PDC now.
1. If your wife insists for PDC, mention about the bsaid mode of payment in the petition,
2. Also mention in the plaint that if she fails to turn up on the day of 2nd motion or refuses to give MCD, then she will not submit the said PDC & in such event you shall be at liberty to stop payment,
3. With the above shield, you can issue PDC.
Hi,
Do not worry about this this is a general practice where payments are done in mutual consent divorce an the affidavits are signed and filed by both, so either of you go back from your consent the payment which are paid is applicable to both parties.. hope that your advocate has prepared a "consent terms" which has details of your payments, if you have kids there custody and both of your future maintenance right etc. . This is the normal way the mutual consent compromise is dealt and payments are made. In case she does not turn up for the final order, whatever the money which she has taken is on record you can fight your independent divorce on this ground. If any cheque given as post dated . If the divorce does not take place stop the cheque by putting a "stop payment" instruction on bank and send an intimation to her and her advocate. If you have mentioned the cheque details in the consent Terms or in the petition you shall not be liable under 138 NI act. The money already gone to her will be treated and you can bring it as you have paid towards her alimony or maintenance.
Hi, Thanks for the reply. Here her lawyer is insisting me to give a post dated cheque and it will be with court only till the final hearing is done, is it rite ? and he is saying that we have to give a proof or security to the above agreed amount, other wise the judge will not consider it is this happens in court ? please advice i have to answer the advocate on this... please help me.
1. I repeat the curt never ask for any proof in mutual divorce. So you can understand why her lawyer is insisting for this.
2. However at the same point of time there is no harm in giving a PDC especially when you have to pay your wife anyway once the divorce is done.
1. Court never ask for bond or proof of security for paying agreed compensation,
2. The Court also will not keep your PDC in the file,
3. Best course of action, as suggested earlier, is to give the PDC duly mentioning about it in the MCD petition keeping a provision for stopping the payment, in case uour wife fails to appear before the Court on the date of 2nd motion.
1) instead of post dated cheque you can mention in consent terms that sum of Rs 8 lalks would be paid by demand draft at time of second motion .
2) it is not the practice to keep post dated cheque in court records .
3) you must have engaged your own lawyer in MCD case ,in case wife lawyer is inisisting that you give post dated cheque the details of cheque must be mentioned in consent terms . issue stop payment instructions if wife does not come to court at time of second motion