Mutual consent of divorce

Question asked on: 08/04/2016

My  husband compelled me to support his petition of mutual consent of divorce. Because of such compulsion I accepted his offer for one time settlement. he gave 4 lac for it and refused to give any amount for my treatment. He said that 4 lac is given for my treatment otherwise I’m not entitled for any monetary relief.

This is my second marriage and he knew well about my first marriage. I have taken divorce from my first husband 3 years before this marriage. Our marriage is solemnised by online matrimonial site. I am suffering from brain tumor since last 2 years. He is taking advantage of my this condition and compel me to accept one time settlement for mutual divorce. But I don’t want divorce.

Advised by: Shivendra Pratap Singh,

Hindu marriage is sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bones and flesh to flesh.

After the marriage law enjoins the corresponding duty on the husband to look after her comfort and and not only to provide her food and clothes but to protect her from all calamities and to take care of her health and safety.

Section 13 B of The Hindu Marriage Act (HMA) provides divorce by mutual consent. Consent must be free from duress, compulsion, threat, undue influence, fraud etc. Consent is not defined in HMA but section 13 of Indian Contract Act defines consent as ” Two or more persons are said to consent when they agree upon the same thing on the same manner.” Consent is said to be free if it is not obtained by coercion, undue influence, fraud, misrepresentation, mistake of facts etc.

In the law of contract if party to a contract is under a pre-existing duty to perform then no consideration is given for contract and contract is therefore voidable. Your husband is liable to take care of your health so he cannot use your disease as a tool for obtaining your consent for divorce.

You should file appeal before the High Court against this divorce decree on these grounds :-

  • Your consent is obtained by undue influence.
  • There was no free consent.
  • Husband is bound to take care of your health so he is bound to provide best possible treatment. So he cannot bargain divorce decree for giving 4 lac as one time settlement for your treatment.
  • Husband cannot take advantage of your urgent need of money i.e. for treatment of brain tumor, for obtaining your consent.

This decree is liable to be set a side in devoid of free consent. You must file appeal against it.

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