• Mutual consent divorce

Hi Sir,
I have been married for 4 years and a mother of 3 year old kid now. My husband has been abusing me verbally and at times even physically even in front of our child. Inspite of several times me telling him to stop his behaviour he would ask me to improve myself and he cannot change. I have finally come back to my parents place with my kid, resumed work and living peacefully. However now my husband has been asking to go for mutual divorce since we both are not wanting to take relationship further. I wanted to know how is the alimony/Maintenance calculated?Is it granted in case of mutual divorce or if the wife is working. I would need money for my sons education. Should I ask for lumpsum of monthly maintenance?
Asked 7 months ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
Hello,
1) When you file for divorce with mutual consent there is a consent term that is agreed upon by both the parties. If you ar earning and is able to support yourself you are not entitled for maintenance or alimony.

2) Child support is the responsibility of the father as well. You can certainly ask for a lump sum amount to be deposited in an FD for the educational purposes and maintenance of the child so that the interest accrued can take care of the expenses. Alternately there can be an undertaking from him to bear the expenses of the child's education throughout may be until he is 21 years of age.

3) As he has initiated the talks of divorce you can also demand a one time alimony to be paid to you as you had to rehabilitate yourself as a result of the breakdown in the marriage.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
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In MCD the spouses themselves get to decide the alimony that would be paid whereas the court simply puts its seal of approval on it by passing a decree. In MCD it is immaterial if the wife is employed or not. Go for a one time settlement instead of a monthly maintenance as this would spare you the ordeal of running to court in future to execute the order if he commits default.
Ashish Davessar
Advocate, Jaipur
18205 Answers
449 Consultations
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1)you have not mentioned what is your income and what is your husband income

2)you can seek maintenance for your sons education 

3)you can seek lumpsum amount or monthly maintenance for your son 

4) since you are working you may not get substantial amount as alimony 
Ajay Sethi
Advocate, Mumbai
23371 Answers
1224 Consultations
5.0 on 5.0
In the given situation, if you have decided to bring an end to your married life, you may agree for mutual consent divorce but you can always make a demand for one time settlement for yourself and your child.
He is bound to maintain your child however the monthly payment of maintenance may not be possible for regular follow up, you may ask him to make one time settlement of the amount which you may place before him and afterwards you may negotiate the quantum as per the terms. 
T Kalaiselvan
Advocate, Vellore
14154 Answers
127 Consultations
5.0 on 5.0
Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

So before filing a mutual divorce petition comes to a mutual agreement between all matters like Maintenance to a spouse and children,custody and visitation rights of children and ornaments if he is kept in hand.

In the case of maintenance,a  Hindu male is legally obligated to maintain his spouse. Maintenance includes provision for food, residence, clothing, education and medical attendance and treatment.The Supreme Court of India has held that no fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute.Maintenance is not merely a legal right. It is part and parcel of basic human right. 

A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. A wife is not entitled to any allowance if she, without sufficient cause, refuses to live with her husband. The maintenance amount is calculated (approximately) by taking into account the total monthly take home income (ie. without tax) of both the spouses. The educational background of the spouses, the number of years of marriage, number of children and child custody are also major factors, which govern the maintenance amount. Maintenance amount can also depend on who well the lawsuit has been fought by the advocates of both parties. The spouse with lesser income or no income can get a maintenance amount, which will make his/her complete earnings (plus maintenance) to be equal to 20% to 30% of the above total monthly income. If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance. 

So come to a digit for asking a maintenance amount as a sum for you and your child.If possible deposit the amount of child in bank as fixed deposit


Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. Nothing is granted in case of MCD other han te decree of divorce,

2. MCD petition is jointly filed after mutually settling all the terms and conditions for agreeing for the said divorce,

3. You shall have to settle for the amount you want to claim as compensation from him and it is not alimony or maintenance and it has got nothing to do with your being employed,

4. You st the terms and amount of payment ant discuss with him about it and after that arrive at a mutually agreed amount for your agreeing to sign the MCD petition,

5. If he does not want to pay any compensation to you, do not sign the MCD petition.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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