• Mutual consent divorce and return of streedhan

Sir,

I am an unemployed wife - respondent in a divorce case filed by husband in 2012. Case has come to a point where they are ready for settlement. I have the following questions :

1. They say they can give settlement money only at the end of mutual consent second promotion - at the end of 6 months...they are asking us to sign the mutual petition first time without giving anything from the agreed amount in the mutual consent petition but says they can write the specified amount in the petition. Is this safe as I understand that in majority of cases, we are not permitted to unilaterally go back on mutual petition if they fail to pay the agreed amount. Please  specify a clause to be included in mutual petition which implies that  if my husband fails to pay the agreed amount, then I can continue with the case since my husband is the one who wants to go off & I did not want to separate.....

2. Also, for returning Streedhan articles, they are asking us to come to their lawyer's office...& is not agreeing to come to a Jewellery shop for ascertaining the gold & silver articles in a fair manner. We have bills for everything....but still they are saying that the weight has become less because of wear & tear & are saying that they will bring their own appraiser...... Also they are asking us to sign a letter immediately after getting the articles in their lawyer's office & are saying that we can write in the letter "I have got all streedhan articles.. . no claim. . subject to verification". Since it is difficult to ascertain the weight & purity of gold & silver articles in their lawyer's office and even if we find later that they have cheated, there is a possibility of them saying that we were the ones who had replaced the articles later. So we are not interested in getting back the articles in their lawyer's office. What is the standard procedure of returning streedhan articles & how is the gold & silver weight & purity ascertained ?

Please help me with your valuable advice regarding these 2 issues. Also due to financial constraints, I am not in a position to hire a lawyer anymore...so can I argue the case for myself & file petitions by myself if settlement fails ?

Regards,
Mrs. Vidya ram.
Asked 2 years ago in Family Law from Chennai, Tamil Nadu
Religion: Hindu
If the settlement amount is mentioned in the mutual consent petition, it will be difficult for husband to back out. You can also mention that in the event the husband defaults to pay the amount at or before the second motion, you can proceed with the contested case. Also, in case he does not pay, you can withdraw your consent at the time of second motion.
As regards the jewellery items, you may take your own appraiser to the lawyer's office to ascertain the weight, quality etc., and sign the letter only after your full satisfaction.
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0
1) it is better you engage a lawyer . consent terms have to be vetted by your lawyer . 

2) in consent terms you should mention that atleast 25%of money would be paid at time of filing of petition and balance 75%  at time of second motion . 

3) if either parties fail to turn up in court  divorce wont be granted by family court . 

4) if your husband refuses to make payment as per the consent terms you can with draw your consent . 

5) if you dont trust your husband refuse to take the streedhan articles in lawyers office .
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
1) yes you can ask them to come to jewellery shop if you so desire . 

2)you can ask appraiser to visit lawyer office to verify weight of gold etc
Ajay Sethi
Advocate, Mumbai
23145 Answers
1215 Consultations
5.0 on 5.0
Yes, both parties can go to the jewellery shops where you purchased; or ask the shop owner to send a representative to the lawyer's office.
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0
Hi, unless you have received the amount the matter will not be closed in the court even after 6 months court will ask you have you received the amount mentioned in the petition then only matter will be closed and as far the jewelers is concerned it is better accompanying any goldsmith so that he can ascertain the genuineness of the gold.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1. In such cases both the parties doubt each other for specific performance i.e. in one hand you shall doubt that after you appear for the 2nd motion, your husband may take the decree of divorce and then refuse to pay the amount and on the otehr hand he will apprehend that you will not appear for the 2nd motion after taking the money before hand. So, a compromise should be arrived at by both of you. You can take 25% advance and balance at the Court before appearing for the 2nd motion. This term should be mentioned in the MCD petition,

2. If you do not appear for the 2nd motion, he will not get divorce,

3. There is no standard procedure for getting back the articles. Mostly the wife knows about her artciles and recognises them to take back. However, since you think that those ornaments can be made fake by your husband while returning, you can ask your husband to come to your lawyer's office and also the  jewellery shop representative to come there to ascertain the weight and genuinity of your ornaments,

4. After you exemine the ornaments, you are to give receipt. Even if you give receipt saying that contents not checked, you can not pass on any liability to your husband later on since you had ample chance to check the same and he can also say that you have done the alleged mischief to harass him and to extract money. So, settle this matter amicably.
Krishna Kishore Ganguly
Advocate, Kolkata
12074 Answers
228 Consultations
5.0 on 5.0
1. If your husband is ready to settle with you and has expressed his willingness to go for mutual divorce then let him first withdraw the divorce petition which he has unilaterally filed, and thereafter both of you can file for mutual divorce.

2. The proposal by your husband, wherein he shall not pay anything prior to second motion, is unreasonable and one sided in as much as there will be a question mark on whether he will pay anything at all. A reasonable proposal would be whereby and whereunder you are paid 25% amount at the time of filing of the case and the remaining 75% at the time of second motion. 

3. No standard procedure exists for receiving the articles. The place where the articles are to be received is decided having regard to the peculiar facts and circumstances of the case. To receive articles in the office of your husband's lawyer may not be safe for you. Hence, you can refuse to go his office. Since you have not yet engaged a lawyer the articles can be received in front of a mediator or NGO.

4. To safeguard your interests you should engage a lawyer. If financial constraints impede engaging a lawyer then apply to District Legal Services Authority (the office of which would be located in the district court complex) to  give you a lawyer at the state expenditure.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
1. There is no standard procedure adopted for receiving the jewellery. However, you can ask them to come to the jewellery shop, but they will refuse in all likelihood.

2. A proposal to receive the jewellery in the office of a NGO or women organization can be mooted.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
Dear Querist

as per your information my opinion on your queries are as under:

1. They say they can give settlement money only at the end of mutual consent second promotion - at the end of 6 months...they are asking us to sign the mutual petition first time without giving anything from the agreed amount in the mutual consent petition but says they can write the specified amount in the petition. Is this safe as I understand that in majority of cases, we are not permitted to unilaterally go back on mutual petition if they fail to pay the agreed amount. Please  specify a clause to be included in mutual petition which implies that  if my husband fails to pay the agreed amount, then I can continue with the case since my husband is the one who wants to go off & I did not want to separate.....

Opinion: No need to worry, signed the documents but checked the amount clause in which they have to mentioned the settled amount will be paid at the time of second motion before court through DD or Cash, if this clause is mentioned in the petition then no need to worry, if he fail to pay the amount the divorce can not be grant by the court and court will also ask to you for receiving the settled amount or not....

2. Also, for returning Streedhan articles, they are asking us to come to their lawyer's office...& is not agreeing to come to a Jewellery shop for ascertaining the gold & silver articles in a fair manner. We have bills for everything....but still they are saying that the weight has become less because of wear & tear & are saying that they will bring their own appraiser...... Also they are asking us to sign a letter immediately after getting the articles in their lawyer's office & are saying that we can write in the letter "I have got all streedhan articles.. . no claim. . subject to verification". Since it is difficult to ascertain the weight & purity of gold & silver articles in their lawyer's office and even if we find later that they have cheated, there is a possibility of them saying that we were the ones who had replaced the articles later. So we are not interested in getting back the articles in their lawyer's office. What is the standard procedure of returning streedhan articles & how is the gold & silver weight & purity ascertained ?
Opinion: you may mentioned/stated to them that the stridhan will be hand over to you before the court and not in their lawyer's office. they may be cheated you.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
A. both parties can go to jewelry shop  to get  jewelry items weighed correctly and then take receipt for it from said shop.

B. take said jewelry items in court in presence of judge and file its receipt in court and get statement of both parties recorded to this effect.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0

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