Maintenance in mutual consent
Hi..we want to go through mutual divorce for my sister but if In mutual consent husband z not ready to give compensation then can we apply in mutual divorce court for compensation??
Asked 2 years ago in Family Law from Mulund mumbai, Maharashtra
In mutual consent divorce the quantum of alimony is decided by the spouses themselves by an agreement and not by the court. So if husband is not willing to pay alimony the wife is free to reject mutual divorce proposal and instead independently file a case for maintenance for herself.
1. Mutual divorce happens only when both the parties agree on it.
2. Since giving divorce depends on lot of related things like maintenance, child custody etc. it is mandatory that both the spouses agree on its terms before they apply for it.
3. So in other words if the husband does not agree on the terms like agreeing on quntum of maintenance the mutual divorce can not be even applied as it requires signature of both parties.
4. In that event your sister can apply for contested divorce suit.
Compensation is integral part of divorce taken either mutual or contested untill wife not waived her right to maintenance. It is primary liability of husband to maintain his wife. Compensation cannot be granted under HMA because this act not provides such right in mutual divorce.
You may get it under domestic violence act.
1) in mutual consent divorce consen terms are arrived at between parties which form integral part of the petition .
2) if husband is not willing to pay any maintenance to wife then she can file contested divorce petition and seek maintenance and other reliefs
1) By the very term mutual it suggests that the parties have reached an agreement on all terms of the Divorce before they file the petition before the court and possibly file consent terms with the petition.
2) Your sister can file for alimony and maintenance only in the context of a contested divorce petition and not in a mutually consented petition for the reason mentioned above. Therefore if the husband is unwilling to settle financial issues your sister needs to file for divorce unilaterally.
1. Mutual Consent Divorce Petition is filed jointly by both the husband and wife after mutually agreeing to all the terms and conditions of the divorce,
2. If the husband does not want to give any compensation and your sister does not give consent for the divorce without receiving the compensation then it no longer stays as a mutual consent divorce petition,
3. If your sister files a divorce petition on the ground of cruelty then in that divorce petition, she can claim an amount towards compensation.