Hello My story in brief: We were living in Chennai with 2 boys aged 9 and 6 when in 2010, after a series of violent fights, complaints against me in various forums like Police station, Social Welfare Board, State Human Commission, Commissioner of Police, my office etc etc, she left the house in Oct 2010, Since then I got transferred to Pondicherry and am bringing up the boys on my own. In 2011, she forcefully occupied the flat we were living in (Which belongs to my mother) and filed RCR, IM, Child Custody cases against me with various false allegations. In return, I filed for divorce in 2013 by which time it was already more than 2 years since separation. In the meantime, she pulled my entire famliy to court including my mother by filing a suit claiming that they were trying to throw her out of the house, actual fact is none of them even reside in India. The judge sent us to the mediation centre and after more than a year an agreement was made, I was to return the jewellry that was in my possession (Gifted to her by me and my family) and pay 50% of the agreed amount when the MOU was signed and MCD was filed in court. The same was done in Apr 2015. Now we had to wait till oct 2015 to come back and give the remaining amount and appear before the judge and confirm our intentions. Here she started giving various excuses and finally in July 2016 she said that she is not interested in the divorce settlements and that she needs more money. In the meantime, my mother became impatient and based on her lawyer's advice, gave her an X amount to vacate the house and got back the flat. Now, she has my 50% + my mother's big payment and is threatening me various things,. The judge had asked her to repay the amount i had given her, but said that she cannot insist since the agreement was made out of court. So she is not giving that back, nor is she signing the final settlement. My questions are 1. What is my future course of action ? (It's already 5 years since RCR was first filed in court) 2.Will I get any symapthy from the court for having been double crossed by her ? 3.Will the amount paid by my mother (Which I have to repay) be taken as part of her settlement ? 4.Will I ever get a divorce or will she be dragging this forever ? 5.Do I have strong grounds for a divorce ? I am Christian, she has tortured me and the kids, foisted false cases and complaints against me, deserted me and her own children. All of these I can prove. 6. How much longer will I have to endure this even after paying up ? Sorry for the long post. Please give your valuable advice.
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1) if your wife with draws her consent and divorce petition is dismissed file an appeal against order of dismissal . HC would grant you divorce as you have made 50 per cent payment to her on basis of MOU arrived at between you and your wife
2) you would get court sympathy
3) payment made by your mother would not be counted as part of your settlement
4) you would get divorce
5) you have strong grounds for divorce
1. This is a common design created and followed in MCD petitions by many wives who take x percentage of alimony on the first hearing and then do not turn up for the second motion to extort more money from husband. Be that as it may, unless she comes to the court to record her statement the court cannot grant MCD. The court will have no option but to dismiss the MCD if she does not turn up.
2. You will get some sympathy for sure from the court but nothing beyond it.
3. To recover your amount you can file a suit for recovery and also a criminal prosecution for cheating under section 420 IPC.
4. You can independently file for contested divorce on the ground of cruelty.
1. if she refuses to appear on the day of the 2nd motion of the MCD petition, you can not get decree of divorce and the petition will be rejected after 18 months from the date of its filing.
2. You can file a divorce suit now and are likely to get sympathy from the court for being cheated by your wife.
3. If any settlement amount is ordered, try to get the said amount paid by your mother adjusted with the order of the Court.
4. She is misusing the process of law for which you shall have to stay alert. You should file the divorce suit and follow it up closely to expedite the matter.
5. You have a strong case to win.
6. The MCD petition will be rejected if she does not appear before the Court after 18 months from the date of its filing. A freshly filed divorce suit may take 2 to 3 years to be disposed off if pursued properly by your Advocate.
1. What is my future course of action ? (It's already 5 years since RCR was first filed in court)
Have you withdrawn your divorce case, if yes, then you may file it once again and seek the relief of divorce on the grounds of cruelty citing all the incidents that took place so far.
2.Will I get any symapthy from the court for having been double crossed by her ?
The court will not be affected by the sentiments of the warring parties, it will decide based on the law involved in the case before it, so it is you who have to convince the court of your case and merits in your side.
3.Will the amount paid by my mother (Which I have to repay) be taken as part of her settlement ?
That cannot be enforced by court, however your mother can file a money recovery suit if she does not wants that money to be part of settlement anymore or can pray that this shall be part of the ongoing settlement talks in this regard by producing the evidences of the payment before court.
4.Will I ever get a divorce or will she be dragging this forever ?
Depends on how you prosecute the case against her or take up the case through your lawyer hereafter.
5.Do I have strong grounds for a divorce ? I am Christian, she has tortured me and the kids, foisted false cases and complaints against me, deserted me and her own children. All of these I can prove.
The case will be decided by court based on the merits and arguments put before the court by both parties.
6. How much longer will I have to endure this even after paying up ?
You have to stop the payment now and start fresh talks on settlement.
Is it true that the MCD cannot be withdrawn unless it is declared that I was not of sound mind at the time of signing ? Can i get the Judge to rule on it(or dismiss it) since the other party is no longer interested in honouring the MCD ? What are my options now ? Please help. Thanks
wife is at liberty to with draw her consent for MCD
2) Supreme Court Judgment in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, in which it is held as follows; “ The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect .from the date of the decree, if the following conditions are met: (a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months; (b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and (c) The petition is not withdrawn by either party at any time before passing the decree....
it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. ...
3) court can dismiss the petition if wife with draws her consent
4) you can file appeal against order of dismissal of divorce petition as you paid her 50 per cent of settlement amount
1. If none of you or any of you refuse or fail to appear on the next date of hearing being the date of the 2nd motion, then the case will be adjourned to the next date.
2. If none of you or any of you refuse or fail top appear on the next adjourned dates of hearing for the 2nd motion, the MCD petition will automatically be rejected after 18 months from the date of its filing on the ground of non prosecution.
3. Alternatively, you both can appear on the day of the 2nd motion and when asked by the judge whether you still want divorce, then both of you can say no and in that case your MCD petition will be rejected on the spot.
4. It is absolutely incorrect that for withdrawing the MCD petition, one shall have to declare that he was of unsound mind while filing the MCD petition. The 6 months cooling period allowed is specifically for the purpose of rethinking about the decision of divorce and inform the Court after 6 months whether the applicants or any one of the applicants still want/s divorce or not.
No that is not true, you can withdraw MCD anytime you deem fit, you can file an application to this effect that you want to withdraw the MCD from your side for the reasons as mentioned in the application.
If the other party is not interested in going ahead with the MCD proceedings, then it may either withdraw the consent during the second motion or remain absent from appearing before the court without any valid reason, then the court may set her exparte and may pass dismissal order.
UPDATE: IM was fixed at 3,500 p.m and children custody was not contested and awarded to me. RCR was tossed out a few days ago (Will explain) Now, the remaining cases are 1. My divorce petition in Family court 2. Her DVC complaint in Mahila Court. After 11 years of unnecessary court battles and wasted lives, now it seems she has given up. I'm saying that because she has stopped appearing for the 3 cases that were pending before 2 courts. The family court has a change of Judge (first time it was a man) and he is quite serious about disposals. He gave her 2 opportunities and tossed the RCR because she failed to appear and no lawyer was present either. She last attended a hearing in Feb 2021, after which she is absconding. Her lawyers are seen in the court but not representing her. So from the above, I'm guessing she won't appear for any more hearings and everything will be decided ex-parte. The divorce petition has been marked for ex parte evidence for the next hearing. The DVC case has been marked as "In the interest of Justice one more opportunity given to petitioner . For petitioner side marking of further documents (NFA) call on [deleted]". This was done in March also, but after that the courts were closed for covid. I want advice for a clean exit. 1. What should I do in this next hearing which has been marked as ex parte evidence (What actually happens in this?) ? 2. I do not want to pay any further money because she has already taken 9.00 Lakhs from me and my mother. I'm bringing up two adult children now. She has a job, probably a boyfriend whom she wants to marry as well. How do I argue this (not the boyfriend part, that is purely my assumption)? Or should I file an additional petition for this? 3. Please advice on DVC court matters also. In Jan 2021, the magistrate (again a new one), after promising that he will dispose of the case in 6 months, ordered a sum of Rs.3,000 as IM in addition to the 3,500 ordered by the family court.
1) you have to file affidavit of evidence
2) wife can cross examine you
3) if wife does not appear in person or through lawyer you would be entitled to exparte decree
4) if wife does not appear in DV case it would be dismissed
If it is an ex parte decree, will there be alimony or maintenance ? If so, how can I avoid it? (She has already taken 9.00 Lakhs through the MCD and to evict her from my mother's flat)
If you have filed petition for divorce and wife has not claimed maintenance or alimony she would not be granted any alimony or maintenance
2) if it is mutual consent divorce petition wife presence is necessary for divorce decree to be granted
3) petition fir MCD would be dismissed if wife does not appear in court
1. Since she has been called absent and set exparte, you have to give your side evidence on an affidavit which is called proof affidavit along with all the documents that you have produced before court.
The court will then pass an exparte judgment in your favor.
2. You cannot stop paying the maintenance amount that court has ordered until and unless you prove before court that she is gainfully occupied and drawing a handsome salary hence this order may be set aside.
3. If the DVC is disposed then you do not have to pay the interim maintenance because that order will become infructuous upon disposal of the main petition.
For alimony she has to apply for without which the court will not pass an order on granting of alimony automatically.