• Section 13B and 25

I seek help of all your learned lawyers with regards to Section 13B and the possibility of Section 25 therein.

MCD under Section 13B was filed in August 2013. However I (groom) was forced to agree for MCD under the threat that else 498a will filed. I was also forced to agree for 7 Lakhs of full and final amount in the petition. However later after filing the petition, I sought the help of a lawyer who suggested we will send the girl notices to come back and will ask to withdraw the petition. Accordingly see the notices to Girl within 2 months of filing MCD. Sent almost 4 notices on the same lines and did not appear for any of the hearing dates. In July 2014 received a notice from court to appear in the court else the appropriate decree will be granted.

I along with my lawyer appeared for the date and made an appeal to the judge to cancel the petition. Judge asked for the opinion of both of us on which girl asked for divorce and I asked against it. Judge sent the matter for mediation.

Meanwhile, at the time of MCD I have submitted a cheque valued at 7 Lakhs as a security where it was mentioned in the MCD petition that at the end of 6 months the cheque (dated February 2014) will be returned and I will transfer 7 Lakhs in th girls account. However I neither appeared for any of the interim motions before the completion of 6 months nor after 6 months till the notice was sent in July 2014 to appear before judge. In May 2014 girls father deposited the cheque which bounced since I had mate it as STOP PAYMENT.

I was sent a notice through girls lawyer that I should deposit 7 Lakhs within 30 days of receiving the notice else legal actions will be taken. Since I was out of country when the notice was served it was dropped in the letter box and there is no receipt signature on the registered notice from my end.

I did not receive any communication from girls lawyer as yet after that.

Now the first seating of mediation has happened and we have been asked to be present for the 2nd seating in the last week October 2014.

My lawyer suggested going by the developments as of now it is likely that decree/judgement of divorce will be granted in girls favor and even if I did not come for the mediation 2nd seating it is fine. He suggested that as far as 7 Lakhs are concerned judges power of famiky court is only limited to giving the decree and no decision related to maintenance money. Also now since the 30 days period after the cheque bounce notice has been sent has elapsed and they don't have any proof of I having received the notice, now after 3 months they cannot file charges against Cheque Bounce case. Also girls side cannot file Section 25 asking for maintenance after the decree or judgement is awarded also since the girls is keen and requesting for divorce.

I seek the values suggestions from all you learned lawyers regarding Cheque Bounce case after 3 months, legalityand issues regarding not paying paying 7 Lakhs after the degree and Section 25 after decree or judgement has been in favour of Divorce from girls side.

Many Thanks.
Dhananjay Mishra - Dhule
Asked 2 years ago in Family Law from Dhule, Maharashtra
Religion: Hindu
Hi,
It is your liberty to withdraw your consent given for Mutual Consent Divorce.If you withdrawn the consent, the court will not pass Mutual Consent Decree.About cheque bounce, you are advised to send the reply to the statutory legal notice received by you for the payment of 7 lacs . Where the matter of MCD has not decided, the payment of 7 lacs does not required.The cheque bounce case will not be maintainable in your stated facts.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
1. notice is deemed to be served when it is came into your knowledge. it does not require your signature. 

2. delay in filing complaint in cheque bounce case is may be condoned by the court if complainant successfully satisfy that there is reasonable cause for delay . he may be plead that you have promised to pay the money and requested that please don't file complaint etc.

3.amount of maintenance is decided by the court in the light of series of judgments of superior court. it is basic principle that maintenance should be decided in such a manner that it'll not amount to penalty.

4. you can challenge the agreement on the ground of coercion that at the time of filing the MCD your consent was taken by threat, coercion ant it was not a free consent. so the clause of payment of money may be decreed void.

5. when it decreed void you can take that decree as a defense in the complaint case filied against you in dishonor of cheque. 

6. when gives order to pay 7 lakh at that time you can challenge it on the ground of coercion, if court found it genuine then it may decide the amount on settled guide lines of superior court.
Shivendra Pratap Singh
Advocate, Lucknow
2792 Answers
41 Consultations
4.9 on 5.0
Dear Querist
You may withdraw your consent at any time before the final Judgement of the case. But as per my opinion it will be better to go for MCD and complete the procedure and get divorce from her, if she is not ready to live with you then there is no law in india to for her to live with you.
the cheque bouncing case can not be file after three months of receiving the notice, the time period for filing case is one month. you should checked before the court concerned in which jurisdiction the cheque was got bounced. it may be possible that they have filed the complaint.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. You followed a flawed legal strategy. Once you had filed MCD what was the point in issuing notices to the wife to come back? This should never have been done. If at all you wanted your wife to come back attempts should have been made through backdoor channels without sending a legal notice.

2. According to your own facts, subsequent to the bouncing of your cheque, a notice has been sent by your wife asking you to deposit 7 lakhs in her account. I presume you have replied through your lawyer to the notice issued by her. If you have not replied to the notice then your defence will be prejudiced in the court. When the notice has been issued by her within the time period prescribed by the law she is entitled to file a case of cheque bounce against you. 

3. Your lawyer is right in saying that family court which is trying your MCD cannot direct you to pay Rs.7 lakhs to your wife. Your wife can file a separate case for alimony. 

4. She cannot file section 25 after the judgment is passed by the court. 

5. You have to decide what you want-either continue the MCD by appearing in the court on the date fixed for hearing, or withdraw it. The issue of maintenance is to be delinked from MCD.
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
Hi, unless you have given consent for the mutual consent the court will not pass any order for divorce and it may dismiss and secondly wife is always entitled for maintenance unless is she voluntarily gives up her right and as far as cheque bounce  they have to  present the cheque with 3 months form the date of the cheque and after dishonoring of the cheque with in one month they have to issue legal notice and giving 15 days time to make payment and thereafter with in 30  days they to file a complaint if these requirement is not full filled they can't file cheque bounce case and they may file a civil suit against you for recovery of money.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1) it is in your interest to agree for divorce by mutual consent . pay the Rs 7 lakhs agreed at time of filing of MCD 

2) if you dont appear at the second motion and refuse to agree for divorce by mutual consent petition for divorce would be dismissed 

3) you are at liberty to with draw your consent any time before the second motion . 

4) as far as cheque bouncing case is concerned wife can make application for condonation of delay and file case under section 138 Ni . court would condone delay . 

5) you would have to fight 138 Ni case on merits  that there is no debt due and payable to your wife 

6) if your wife is not working she is at liberty to make application for maintenance at any time . after dismissal of your MCD case she can file for divorce afresh and seek maintenance . 

7) you will only end up spending more money on legal fees . better settle amicably
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
1. Your MCD petition has already gone for a toss since you have appeared and submitted against it,

2. In fact you should not have appeared during the 2nd motion to get the MCD petition rejected automatically,

3. There can not be any case filed u/s138 of N.I. Act in the event of dishonour of Security Cheque, as per Supreme Court Judgment. So, relax on that account,

4. It is not a fact that divorce will be granted if you do not come for mediation,

5. MCD means mutual consent divorce and if you do not attend the 2nd motion, the petituion will get rejecte. However, you stated that you got notice from the Court to appear for the 2nd motion which you did. This normally does not take place,

6, Confirm whether it is MCD or a divorce suit filed by your wife or the said MCD has been converted to a divorce suit (which is very unlikely),

7. However, divorce suit takes years to be disposed of if well contested by lawyer,

8. Ask your advocate to contest the divorce petition.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. if u  do not appear on 2nd motion MCD will be dismissed by court.

2. ur wife can file case 138 case in court even after 3 months also.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
MCD might be cancelled in your nonappearance. she can not file 138 case after 3 months as she can not get cheque dishonoured again from bank. time of giving legal notice & filing case is also over as she was bound to give you legal notice with in thirty days of dishonour & 45 days for filing complain after legal notice
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
If you don't appear it be dismissed so try to appear in the same.she will have to file a new case again
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0

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