Divorce petition got dismissed; whats next?
Guest
(Querist) 28 May 2015
This query is : Resolved
Divorce petition filed by wife on ground of impotency and mental cruelty got dismissed after six years of trial. The judgement points out mainly the following findings:
1) Petitioner failed to prove the alleged impotency of respondent ie. husband.
2) Petitioner failed to prove the mental cruelty.
3) Petitioner deserted the respondent.
4) Respondent is not willing to continue the relationship after all these developments from petitioner's side.
5) Court observes that both parties can not forget the past and continue the relationship after all these developments.
6) So, considering all the above points the court dismiss the petition and advise the parties to go for mutual petition (13B).
So, at this stage, what are the options,except appeal to HC, left for the petitioner ie wife to get divorce if husband is not ready for mutual petition?
Even though the judgement says that the desertion is from petitioner's, ie. wife, can she file another divorce petition on ground of desertion?
Can she file another divorce petition on ground of irretrievable breakdown (IRB)? If yes, where can she file it ie. FC,HC,SC?
Can she use any other grounds for divorce at this stage?
T. Kalaiselvan, Advocate
(Expert) 29 May 2015
If the husband is not cooperating for MCD,she can file afresh petition on the grounds of desertion, non-cohabitation and irretrievable break down of marriage. She has grounds for it.
Devajyoti Barman
(Expert) 29 May 2015
No second divorce can be filed by wife though the husband can file one .The wife can though prefer an appeal.
Guest
(Querist) 30 May 2015
If I rightly understood, even the ground irretrievable breakdown (IRB) is not available to wife for fresh divorce petition but the same is available to husband.
So, can husband file for divorce on IRB in FC or should it be filed in SC directly?
In this scenario, if fresh divorce petition is filed by husband on desertion and mental cruelty, can she claim alimony/maintenance/monetary compensation? if yes, what are the chances of court allowing it also considering the current judgement?
which strategy is better, wait for any move from her side OR file for fresh divorce from my side?
Guest
(Querist) 30 May 2015
Please suggest...
Guest
(Expert) 30 May 2015
What your own lawyer has suggested you with reason therefor?
Guest
(Querist) 30 May 2015
Suggested to file for divorce on desertion and mental cruelty...
SAINATH DEVALLA
(Expert) 30 May 2015
You have not answered Dhingraji,good suggestions are always available.
Guest
(Expert) 30 May 2015
Has your lawyer not told you the grounds for filing divorce.
Guest
(Querist) 30 May 2015
Of course yes, suggested grounds are desertion and mental cruelty. But not guaranteeing anything on alimony aspect. Anyway I am here for a second opinion and suggestions from the learned members.
T. Kalaiselvan, Advocate
(Expert) 30 May 2015
In my opinion you may file a fresh divorce petition n the new cause of action i.e. Desertion and non cohabitation for a period of more than two years.
Guest
(Querist) 31 May 2015
sir,then what about alimony part...
SAINATH DEVALLA
(Expert) 31 May 2015
If U are going to file divorce again,what would be UR options( desertion or cruelty or something else)I presume U know that there is an SC ruling that no alimony for wife deserting her husband.As suggested by the trail court for going for 13b,alimony does not arise.
T. Kalaiselvan, Advocate
(Expert) 05 June 2015
If the wife has voluntarily deserted the husband, the question of divorce will be hanging, I am afraid she may not be eligible for alimony.
Biswanath Roy
(Expert) 09 June 2015
Wife has no other alternative but to file appeal against the order highlighting the observations of the court below as enumerated in (5) and (6) above.
Biswanath Roy
(Expert) 09 June 2015
Thank you to concede my advice.
