Applied mutual consent in Feb 2016 & court given 6 months date, but we both not attended court in August 2016, our lawyer taken date again for 6th Sept 2016, (in mutual consent mentioned that I am ready to pay monthly maintainence for wife & daughter) My wife seems not coming court bcoz she mentioned with me that she want compensation else she won't agree for mutual divorce. As we have 2 year baby girl staying with my wife. Our marriage happen Dec 2013 but since 2 years we r staying separate, I'm paying her monthly 5,000 through bank from last 2 years, I go to see my daughter monthly once recently she given complaint her area police station that I am troubling her / hitted her (No FIR) police ask me to come station, I may going in 3 days her area police station, I'm business man & my IT gross income 6.25000 & I have 2 own houses, one my patents staying & another I'm staying.
She avoiding me to visit my child. (I can't stay without seeing my child)
Just I'm thinking which direction I should go further ?
Asked 2 years ago in Family Law from Mysore, Karnataka
1) it is in your interest to pay wife some compensation so that she attends court on next date and you obtain divorce by mutual consent
2)in return wife shoukd agree for joint custody of daughter or once a week visitation rights
if she is not ready to complete the divorce proceedings then you have option for fighting the contested divorce based on cruelty and desertion(if two years has been completed for living separately) under Section 13(1)(ia)&(ib) of Hindu Marriage Act-1955.
You may file a civil suit for child custody and claim visitation right first and visit your child through court order.
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Advocate, New Delhi
Under Sec 28 of SMA ,either party to mutual consent divorce can withdraw consent between the 1st & 2nd motion.
2. I would therefore suggest that you should settle one time alimony or compensation amicably to avoid unnecessary litigation and expenses from both sides, as contested divorce consume lot of time and may adversely effect your business too.
3.She may not be able to curtail your visiting right and in case she refuses then you may approach Court for necessary directions . Besides, once the child attains majority the custody normally shifts to father.
If we both not attend court then automatically case get dismissed right? Is it necessary that I attend court tomorrow 6th Sept ? Since she not coming what I do in court?
Asked 2 years ago
you must attend court tomorrow and record your presence to show that you are ready for divorce by mutual consent
2) if wife does not appear court would give a date . if consent id s with drawn petition would be dismissed
3) if within period of 18 months from date of filing of petition for divorce parties do not appear court would dismiss the petition
No, the Court will wait for 18 months as per HMA from the date of 1st motion i.e the date when both of you had moved petition jointly and by that time if both of you have not appeared in court confirming divorce by mutual consent, then the petition will become infructous .
2. Therefore please proceed as suggested.
Appear before the court and inform to court that she is intentionally not ready to appear before the court and her conduct is cruelty and she harassed you due to extortion of money from you, the court have power to issue notice to her and direct her to appear before the court.
Advocate, New Delhi
you should recall your case and submit additional application for refusing to pay maintenance. it cannot be possible that wife get maintenance and refuse to live. she is reluctant to live with you so you should appose to pay maintenance on the ground that she has no reasonable ground to live separate so as you will pay maintenance only when she lives with you. section 24 HMA and section 125 crpc gives such right to the husband to refuse maintenance.
1. Unless both of you appear in the court personally on the second motion to state your consent the court cannot grant MCD to you. If either of you do not appear before the court it will eventually dismiss the petition after adjourning the case for 1-2 hearings. You should attend the court without fail if you want MCD, regardless of whether she appears or not.
2. You will be free to file a petition for child custody if she has disallowed free access to you.
If she is not willing to give her consent to the agreed mutual consent divorce, then either you may reconcile the matter by negotiating with her for a lump sum settlement with conditions to allow you to visit the child at the intervals as agreed upon, or if nothing is materialising and if the case is dismissed then you may file a divorce case on the grounds of cruelty and also can file a child custody case seeking custody of yor child and visitation rights as an interim relief.
If she is not attending and you are only attending the court on the date of hearing, the court may decide to dismiss the case if you say nod yes to the court's question about it.