Divorce by Mutual Consent:

In the present case, immediately after the marriage, the parties could not adjust due to different temperaments which led to strained relations between them. They lived together as husband and wife for about three months only.

Thereafter, the appellant went to Canada. It is not possible for her to visit India time and again. Both the parties are of marriageable age.

The matter has been mutually settled between them. In view of proviso to Section 14(i) of the Act, condonation of the period of one year in the facts and circumstances of the present case appears to be appropriate.

The petition under Section 13-B of the Act was filed on i2 8 20i3 when the statements of both the parties at first motion were recorded The statements of both the parties at second motion in terms of Section 13B(2) of the Act were recorded on 17/2/2014.

Therefore, the parties are granted a decree of divorce by mutual consent under Section 13B of the Act.

The High Court can allow to present the petition before lapse of one year from the date of marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent It appears to us that when immediately after marriage no marital relationship developed amongst themselves and they are voluntarily inclined to withdraw relationship, their life should not be allowed to be deserted.

When differences have occurred which cannot be compromised if at this stage they are separated, they can be able to enjoy their happy marital life elsewhere Continuance of the litigation will cause mental and physical harassment to them unnecessarily when both of them are not inclined to continue with the relationship at all Both the parties have withdrawn their allegations and counter allegations against each other.

The statutory period of one year required to be maintained by the parties for filling a petition under Section 13B of the Act are independent of the provisions contained in Section 14 of the Act Section 13B when read is a complete Code in itself and, therefore, for filing a petition under Section 13B of the Act, “the parties cannot be allowed to invoke Section 14 seeking waiver of the statutory period of one year from separation for filing a petition under Section 13B of the Act.
 

Divorce petition by husband on the ground of adultery-

This case is filed by the husband for divorce on the ground that the respondent is living in adultery with one Kunhiraman and also With others Therefore the appellant shall implead the person or persons who had sexual intercourse with the respondent as co-respondent in the petition by stating the name, occupation and place of residence of such person or persons so far as they can be ascertained.

In this case the appellant though presented his case on the ground of living in adultery has not impleaded the co-respondent or respondents which is mandatory.

Therefore the petition filed by the appellant is not in accordance with the Act and the Rules framed there under by the High Court of Kerala Therefore the appeal has no merits and we dismiss the same on the ground of non-impleading of the co-respondent/respondents in the petition filed before the Family Court The dismissal of this appeal will not stand in the way of the appellant from filling a fresh petition by impleading proper persons.
 

Divorce Petition filed within few days of marriage:

Urvashi Sibal v/s Govt of NCT of Delhi: In the present case, the marriage did not really last even for a day. The marriage was not consummated. There is no dispute on this aspect between the parties. The agreement executed by the parties in the presence of the representatives of SNDP Sakhas would also disclose that mediators intervened and they were also satisfied about the inability to continue the marital relationship between the parties on the basis of the materials produced before Court, it is clear that the case is one of exceptional hardship to the parties and that it would be impossible for the parties to continue the relationship any further. It could not be assumed that there would be any chance of reunion. Prima facie, there is no indication of any misrepresentation or concealment of the nature of the case or any fraud.

The instant petition was not maintainable, in the absence of seeking cancellation of marriage certificate, that this argument is only noted to be rejected because the conditions for a Hindu marriage are governed by Section 5 of the Hindu Marriage Act, 1956 and the ceremonies which solemnizes a marriage is described in Section 7 of the Act. The registration of Hindu marriages under Section 8 of the Act is for the purpose of facilitating the proof of Hindu marriage.
 

Divorce Petition-Provisions of ‘mutatis mutandis’, applies:

Unless an application made by the respondent for grant of litigation expenses is decided, the respondent is not even expected to file written statement. If such application is decided in favour of the respondent, it is not expected of the respondent to file the written statement unless order granting litigation expenses is complied with. It is not necessary to go into the wider question whether the provisions of Order VIII of the said Code as amended in the year 2002 stand automatically incorporated in Rule i2 of the said Rules. Even assuming that what is incorporated is the amended Rule 1 of Order VIII of the said Code, the same will apply mutatis mutandis. It will apply only to the extent to which it is applicable considering the provisions of the said Act and the said Rules.

If it is held that the period for filing written statement provided in Rule1 of Order VIII as amended is applicable to a Petition under the said Act, the provision of Section 24 of the said Act which is a salutary provision will be rendered nugatory. Moreover, if Rules 10 and 12 are read together, it is apparent that in a given case the Court may issue notice to the respondent without calling upon him/her to file Written Statement. Moreover, the court has discretion to call upon the respondent to file written statement within a longer period than the period of four weeks.

This power is conferred by Rule 10 itself. Apart from this, it is obvious that amended Rule 1 of Order VIII which provides for a time limit is inconsistent with the provisions of the said Act and said Rules and in particular Section 24 as well as rules 10 and 12 of the said Rules. If the intention of the framers of the Rules was to apply all the provisions of Order VIII in its entirety to the proceedings under the said Act, the phraseology used in Rules 10 and 12 would not have been used.

It is intended to apply only those provisions of Order VIII of the said Code which are not inconsistent or contrary to the provisions of the said Act and the said Rules.

The time frame provided in Rule 1 of Order VIII, as amended in the year 2002, will not strictly apply to a proceeding of a Petition under the said Act.
 

Petition under other Act-Grant of permanent alimony--Not competent:

In the instant case, there are no proceedings between the parties and there is no decree of the kind as envisaged under Section 14 of the Act disrupting the material status of the respondent with appellant. Hence, the respondent is not entitled to invoke the provisions under Section 25 of the Act. On the other hand, the respondent is seeking maintenance under Section 18 of the Hindu Adoptions and Maintenance Act. When the marriage of the respondent is void ab initio, she is not entitled to claim maintenance under the said Act. Hence, it is not open to the Court to grant relief of maintenance under Section 25 of the Hindu Marriage Act in the proceedings initiated under the provisions of Hindu Adoptions and Maintenance Act.
 

Presentation of Divorce Petition-Mandatory:

A bare reading of Section 14 of the Act would leave one with no doubt that it is the mandate of the legislature that a Court should not entertain a petition for dissolution of marriage by decree of divorce unless on the date of presentation of the petition one year has elapsed since the date of the marriage. The provision should be understood to be directory and to read a different intention to the statutory provision than what is spelt out by the statute itself.
 

 When Can Divorced persons re-marry:

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
 

To File for Divorce in Saket Court

Contact Choudhury's Law Office
Ph no: 9650499965 / email at tapsash@gmail.com