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Divorce

Mutual divorce

My wife and I are going for mutual divorce. Even after agreeing to the one time alimony , child maintenance etc which I will give to wife, her side lawyer is unnecessarily delaying the matter , for example - delay in writting the petition or else writing petition but intentionally not mentioning the child maintenance on petition for which she is giving me reason like as our marriage was registered under special marriage act, 1954, hence she can't write child maintenance on the petition and she should write all the money and flat I am giving is for my wife. So here are my questions - 1. Is it true that in mutual divorce petition child maintenance part can't be mention (that what I am giving to child as one time settlement so that wife can't claim anymore by herself or on behalf of kid after divorce) as per section 28 special marriage act, 1954 ? 2. Her side lawyer is also saying the one time lump sum amount which I will give through draft , I have to give that to my wife way before the final hearing or final decree..........so here my question is - what if after taking the draft/money, wife doesn't appear on final hearing after 6 months cooling period and stretch it till 1 more year as there is a period of 6 to 18 months colling off period given in mutual divorce scenario as per Indian law, so she might try to stretch it as much as possible and also because she has asked me to pay the monthly maintenance every month till final divorce decree which means the more she delays it, the more it will be beneficial as she can get this monthly maintenance along with the the one time alimony I am giving her. Hence in this particular point my question - a. What should I do as her side lawyer is asking me to pay everything way before divorce hearing and not on final hearing day ? b. Incase after taking the money and the flat where I am giving wife the complete ownership of the flat after doing a gift deed paper work, what if wife withdraws the mutual divorce petition or keep on delaying the divorce, what should I do then? Is there any legal case I can file against her incase if she after taking the alimony money and flat also , she withdraws the mutual divorce petition or keeps on delaying the matter by not coming on the final hearing day? What should I do then ? If any such case is there , please give me the section of case that can be filed against her if she does this fraud with me... 3. Also I want to know why her side lawyer is so harsh on me - where I am not abandoning my wife. I am properly taking divorce from her by giving her 15 lacs money and also giving my 50lacs worth flat , also going to pay for her medical insurance. Still my wife side lawyer will not write things properly on petition about child maintenance and she will intentionally delay in sending the updated petition to me and if I call my wife's lawyer to ask her when she will send me the email of the updated or modified petition after giving her a time of day 4 days or 7 days , she will say for each call I have to pay her 700 consultation fee where I am not even calling her for consultation and just callling her to ask for the email which she needs to send me......my wife is also adamant and saying she will give me divorce only when this particular lawyer would file the divorce petition hence I am not able to change the lawyer too. Plus my side lawyer also is least bothered about calling and asking my wife's lawyers to ask about the update but I am not able to change my lawyer also as I have already given him 20k to check the petition and do my side work but now he too is not helping me in contacting wife's lawyer to know when the petition will be ready. Please suggest what should I do..

( Aurangabad, Maharashtra )

3 years ago

Reply

Seems you are stuck in the situation. As a biological father, it is your moral and legal obligation to maintain the male child till 18 years and female child till 21 years.

You and your wife are bound to share the costs equally. Now if you are giving lumpsum payment. Then it has to be covered in your mutal consent terms that the said money is being giving for the child only for his/her education and living.
Further for flat also get the name of child involved and appoint someone as a Guardian of the child. That way the flat cannot be sold by your wife.

If you are not comfortable with your Advocate then as a client you can change anytime.

Your wife cannot interfere in your decision of appointing an Advocate.

Vidhikarya

Helpful

1. No. You can give fact of providing maintenance to child. Child has independent right in this regard and no parent can take away this right of child.
2. You can split alimony In two part out of which one at the time of first motion and final payment at the time of second motion. You can also pay in one go at the time of second and final motion.
Engage your own lawyer.

Vidhikarya

Helpful

Hello, Sir.
Both parties must have given their consent to a mutual divorce under section 28 of the special marriage act, and there must be no residual disagreements in the fields of alimony, child custody, maintenance, property, and so on. The divorce is deemed final after the court issues a divorce decree. As a result, there is no such thing as the child's custody not being stated. In response to your second question, if your wife fails to fulfil her portion of the joint divorce consideration, you will not be obligated to fulfil yours. In response to their inquiry, a lawyer or advocate is a party's representative who follows the party's instructions. So, if the lawyer proposes any criteria, it is the party who is essentially looking for a solution.
Thank you.

Vidhikarya

Helpful

Hi Sir,
In a mutual divorce as per section 28 of the special marriage act, both parties must have given their permission, and there must be no remaining differences in the areas of alimony, child custody, maintenance, property, and so on. When the court issues a divorce decree, the divorce is considered final. therefore there is no such thing as the custody of the child cannot be mentioned. As for your second question if your wife fails to do her part of the consideration in the mutual divorce then you will not be bound to do your part as well. As for your their question, a lawyer or an advocate is a representative of the party and does as instructed by the party itself. So if there are some conditions which are brought forth by the lawyer then it is the party that is basically seeking that part.
thank you, kindly rate the answer.

Vidhikarya

Helpful

See mutual consent divorce means it has to be as amicable as possible and one can make it a money making machine by extorting and armtwisting other party. If your wife, through her lawyer, is playing game then you also need to do the same to teach her a lesson and get her to come to terms.
You stop this transaction and in in doing this what max you will be losing is that you will have to pay the monthly maintenance, if there is a court order. Of not then don't pay. Let her feel the heat.
Later if she wants to cooperate then hire a third lawyer separately and get the MCD done fast.

Certainly you need to put down all your agreed terms in the petition and the MoU then only you can go for MCD and don't pay anything before the second motion or the final decree day or unless the affidavit is done as there is risk involved in this case as per your narration.

Abhimanyu Shandilya

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Aap mutual divorce dakhil kar sakte hai. Or petition me sab conditions draft kar sakte hai. Children ke baare me likh sakte ho. Children hai to uski dekh rekh ka conditions to likhni padegi. Rahi baat ek must dhan rashi ki to aap usko us din de jis din court dono paksho ke bayan likh le or file ko order ke liye fix kar de. Advocate nhi sun raha hai to aap change kar sakte hai. Ya bar Association ko complaint kar sakte ho. Ki advocate sahi guide nhi kar raha h.