• Mutual Divorce

Me and my wife are filling for mutual divorce. I don't want divorce for simple reason as I did nothing wrong. She deserted me and along with her family threatened to file 498a case against me, my father and my sister. Due to this they have forced us to settle for handsome amount in form of alimony to her (after mutual divorce). Since things have gone so bad, my family also see no point of bringing her back and thus I have to accept mutual divorce. She also taken our family jewellery.
My query is related to mutual divorce.
Q1. Can other party unilaterally withdraw consent for mutual divorce after 1st motion ?
I have seen lawyers saying both things. Some saying consent can be withdrawn at any stage. Some saying unilateral withdrawal is not possible. Since I am the one who will be paying, can I withdraw consent on second motion if I can not arrange funds promised to give her in second motion. As the amount is huge and father's heath is not good, I am not sure in future about the availability of funds. Since I am not the one running for divorce, even if mutual divorce is not granted, I am fine.

Q2. If court does not recognize my withdraw of consent and awards divorce, does the claim of maintenance remains open which would not have been had it been clean mutual divorce.

There are no kids or other complications. I just to need to pay handsome amount.
Asked 4 months ago in Family Law
Religion: Hindu

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7 Answers

You are at liberty to with draw consent for divorce by mutual consent at time of second motion 

 

2) court would not pass divorce decree if you with drawn your consent 

 

3) wife is at liberty to file fresh petition for contested divorce claim maintenance from you 

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

1. Yes they can

2. It will not be allowed if the consent is withdrawn. Maintenance will be pending as the divorce will not treated as mutual after withdrawal of consent

Prashant Nayak
Advocate, Mumbai
26719 Answers
79 Consultations

4.4 on 5.0

1. If you don't want to give her the demanded money you may refuse and also withdraw your consent in the mutual consent divorce.

2. The court will not grant divorce if you express before court about withdawing your consent for divorce on mutual consent grounds.

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

Hi 

In a mutual consent divorce petition, a party can withdraw unilaterally any time (even on the day of 2nd motion).   

At the time of 2nd motion, parties have to file an evidence affidavit and also consent declaration for grant of divorce. 

So, if you do not file the evidence affidavit/consent declaration on the day of 2nd motion, divorce will NOT be granted. 

However if you need more time for making alimony payment, you can always ask the court to adjourn the matter by another 90 days. 

Courts  cannot grant divorce unless both parties consent to the divorce by way of submitting a consent evidence affidavit. 

Hope this information is useful. 

 

Rajgopalan Sripathi
Advocate, Hyderabad
2169 Answers
394 Consultations

5.0 on 5.0

Hi, She can withdraw the consent after signing the first motion as she has the liberty to withdraw the same.

 

2.   As wife has every right to claim maintenance. However, she has to prove your financial capacity.

Pradeep Bharathipura
Advocate, Bangalore
5374 Answers
306 Consultations

4.5 on 5.0

1. YES, as this is mutual then both consent is needed till the time of passing decree . 

2. Hence, you can withdraw your consent even after passing the first motion order 

Mohammed Shahzad
Advocate, Delhi
9473 Answers
107 Consultations

5.0 on 5.0

Dear Client,

Yes, you can withdraw the consent after the first motion. As per the Supreme Court, one of the parties may withdraw their consent at any time before passing of the decree of divorce and unless there is a complete agreement between the husband and wife for dissolution of the marriage and unless the court is completely satisfied that a free consent has been given by both the parties, a decree of divorce by mutual consent cannot be granted.

Thnakyou.

Anik Miu
Advocate, Bangalore
4377 Answers
45 Consultations

4.9 on 5.0

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