How to speed up the petition filing for mutual divorce How to speed up the petition filing for mutual divorce

2 years ago

With reference to #230030

After finalizing all T&C (cash alimony for my wife, property rights to my wife for child's maintenance) with my wife over last few months, we finally decided to proceed with hiring a common lawyer for filing the mutual divorce in May. Here too, my wife had put a condition that we have to go ahead with the lawyer of her choice, and I was okay at the start as all our T&C were pre-decided. Moreover I had to bear all the lawyer expenses although she was chosen by my wife!

However, after a week when the first version of the petition was presented, I was shocked to see that "child maintenance" was not mentioned anywhere.. Rather the fully paid property ownership rights to my wife which was supposed to be take care of my child's maintenance was also mentioned as "for wife's prosperity".

I tried to negotiate with her lawyer that for my own safety, "for child maintenance" & "no further claim" clauses should be added in the petition however she was adamant stating that "anything related to child cannot be added in the divorce petition as it's between husband and wife". Finally I had to hire a separate lawyer for myself (extra cost for me!) and he is still trying to negotiate adding the mandatory and basic clauses (apart from mutually agreed T&C) in the petition to make it safe for my future.

Already 2 months into the divorce process, there has been multiple instances where I could see that my wife and her lawyer were trying to delay the matter giving fake excuses like "wife busy", "not able to communicate", "not possible this week, wait till weekend" and I am still waiting for an updated petition from her lawyer since almost 2 weeks.

I am not able to chase her lawyer in the fear that she or my wife might delay it further stating some other excuses and because I want a smooth process till final hearing. Moreover her lawyer doesn't want to attend my calls (although I have paid her!), my wife directs me to her lawyer and my lawyer is also fed up waiting for a response from her lawyer which means that I myself steps in at times and chase the overall process.

I have agreed to all T&C from my wife, giving her and my child almost everything I have as of today.. And in return I just want a smooth processing without any further delay and a full proof petition which can avoid any further unrealistic claims from my wife regading her or child maintenance.. However, in all these I am running out of options of how to chase her lawyer so that she can speed up the execution..

I have two queries:
a) is it true that under Special Marriage Act, anything regarding child maintenance cannot be added in the mutual petition between husband and wife?
b) is there any other way I can force her lawyer to speed up the execution and give some importance to my case like all other complex or similar cases she is handling currently?
c) also once the petition is filed, I would want to request the honorable court to waive of the 6 months waiting period. Can her lawyer deny presenting this request on behalf of myself and my wife?

Vaidehi Samant

Responded 2 years ago

A.Child maintenance clauses can be added in divorce terms even if the divorce is happening under any law or Act, do not fall to such trap because if the child maintenance clause is not included in mutual consent terms of divot your wife might get further scope to file litigation for child maintenance even after the divorce has happened which may disturb you even further therefore insist through your lawyer on child maintenance terms to be added/included in the divorce terms to keep the same stable so that things end for once. Rest of your doubts are more of psychology related and hence cannot comment upon and you got to deal with it smartly and manipulatively. Thank you.
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Vidhi Samaadhaan Vidhi Samaadhaan

Ayantika Mondal @ Prime Legal

Responded 2 years ago

A.Hello Sir.
There is no such provision in the law that you cannot add child maintenance in the mutual divorce petition. Her lawyer is no one to decide what could be added and what not be added in the petition. Issue regarding forcing her lawyer to give priority to your case can only be done by you asking him in your personal capacity. There is no other way force her lawyer to give priority. it's completely his choice. Option you have is to change your lawyer.
Thank You
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Vidhi Samaadhaan Vidhi Samaadhaan

Anik

Responded 2 years ago

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A.hello
1. There is no provision in the Special marriage act that anything regarding child maintenance cannot be added in the mutual petition between husband and wife.
2. You could ask the other lawyer to do in your personal capacity. No one can force him to give priority to your case.
3. For that contact your lawyer himslef.
thanks
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Vidhi Samaadhaan Vidhi Samaadhaan

Pardeep Kumar Dhiman Dhiman

Responded 2 years ago

A.Aapsi vivah vichhed ka jo khand kanoon me joda gya hai uska meaning yahi hai ki family ka settlement. Family me children bhi aate hai. Yadi children minor hai tab unka settlement kaisahoga
Yadi advocate aisa bol raha hai vah kanoon ke viprit bol raha hai or aap ko dhokha diya jaa raha hai. Aap ko turant advocate change karna chahiye. Aap aisa nhi karte to aap ko kafi nukshan ho sakta hai.
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Vidhi Samaadhaan Vidhi Samaadhaan

Advocate Sinjari Bandyopadhyaya

Responded 2 years ago

A.a) In the Mutual Consent Divorce under Special Marriage Act,1954,as amended up to date, all the terms required to be included which have been agreed by and between the husband and wife before filing that Mutual Consent Divorce Petition and therefore, the terms relating to the maintenance etc for the Child who is born out of that wedlock is necessary therein.

b)In Mutual Consent Divorce Petition , if the necessary terms are missing,then it is necessary to amend that Joint Petition after taking leave from the District Court through Amendment Application.

c) Minimum six months waiting period is must after filing of Mutual Consent Divorce Petition and that period cannot be waived because as per
Section 28(2) of the Special Marriage Act, 1954,"On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree."
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Vidhi Samaadhaan Vidhi Samaadhaan

Abhimanyu Shandilya

Responded 2 years ago

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A.a) Who says that and if she is saying that ask her to show the law or the precedent.
b) Can't comment on that. It's psychological cum tactical game -you got to act on it or change your lawyer.
c) The lawyer herself/himself ask for it- the lawyer cannot/should not go against the wish of the client.
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