Is 6yrs separation during the pendency of the case a ground for divorce?
Guest
(Querist) 28 January 2015
This query is : Resolved
I'm contesting the divorce petition, HMA 13(1), filed from wife's side on ground of impotency & mental cruelty. It was filed six years back, one month after marriage,and the trial is still going on.
I've almost disproved all her allegations and also produced potency certificate from Medical Board.
During my cross I admitted that I'm not ready to take her back after all those humiliations, and I just want judgement dismissing her allegations like impotency otherwise my future would be in trouble.
Now, during argument, knowing her grounds are weak and disproved, her adv. pleaded that if parties are not living together for more than six years and both parties are not willing to live together again, such a marriage can be treated as dead marriage and in such cases the family court can grand divorce even if the grounds in the petition are not proved. She cited some supreme court judgements and legal papers/articles in this regard.
1) So, do family courts have the power to grand divorce just because parties are separated for more than six years, during the pendency of the case filed on ground other than separation, and both are not ready for reunion?
2) If both grounds ie. Impotency and mental cruelty are not proved, can Judge use his own discretionary power to invoke any other ground like separation which is not mentioned in petition, to grand divorce?
Nadeem Qureshi
(Expert) 28 January 2015
Dear Querist
there is a provision in Hindu Marriage Act-1955
section 13(1A) of HMA is related to your problem.
read the section carefully.
Section 13(1A) in The Hindu Marriage Act, 1955
22 [(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
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Guest
(Querist) 28 January 2015
Divorce petition under HMA 13(1) was filed just one month after marriage on ground of impotency & mental cruelty and nothing mentioned about separation. Petitioner also admitted that she sumoto went to her parents house deserting me.
There are no RCR or judicial separation decree.
Dr J C Vashista
(Expert) 29 January 2015
Dear Namdeem Qureshi,
I respectfully disagree with you since the provisions of section 13(1A) are different to the circumstances explained hereinabove by the author. You will appreciate that neither any decree of judicial separation nor RCR has been passed in the case in hand.
@ Sonu,
1. Yes, it is irretrievable break down of marriage and the petition can be allowed (although the ground is yet to be incorporated by legislators in HMA, 1955).
2.No, the court cannot use discretion in amending the petition. It is the petitioner and only petitioner who can get the same amended, if allowed.
However, if you do not wish to continue with the marriage why do you choose to oppose the divorce, let the petition be converted into Mutual Consent Divorce on an application before the Family Court, of course on your terms.
Best Wishes,
Dr. (Major) J C Vashista, Advocate
Delhi High Court, New Delhi
email: majjagdish@yahooo.com
Mobile: +91 9891152939
P. Venu
(Expert) 29 January 2015
Your wife's allegation of impotency, if proved, amounts to cruelty against you.
ajay sethi
(Expert) 29 January 2015
court cannot use its discretion to grant divorce on grounds not mentioned in the divorce petition . it is in your interest to convert petition into divorce by mutual consent
Rajendra K Goyal
(Expert) 29 January 2015
Court can not decide divorce on the other grounds not mentioned in the petition.
Guest
(Querist) 29 January 2015
Thanks experts!
@Dr.Vashista,
1. Yes, it is 1. Yes, it is irretrievable break down of marriage and the petition can be allowed (although the ground is yet to be incorporated by legislators in HMA, 1955).
a) Can Family court grand divorce on irretrievable break down(IRB)? Isn't it the ground available to Supreme Court only? Please advise.
b) I'm not against the FC granting divorce on IRB along with dismissing her allegations also. But I doubt she will go for appeal if there is any restriction on FC using IRB for divorce decree.
Nadeem Qureshi
(Expert) 29 January 2015
Dear Vashista Sahab
I really appreciate your words but as per section 13(1A) of HMA if there is no cohabitation between the parties then this is also a ground to get divorce decree.
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year]
I think i may be wrong to interpretation the word but as per my opinion to Sonu that on the above ground the divorce may be grant to parties if prayed or after filing fresh petition.
Dr J C Vashista
(Expert) 30 January 2015
Dear Sonu,
As you are aware IRB is the only prerogative of Supreme Court and the same is yet to be provided to lower judiciary, therefore same cannot be exercised by FC. Family Court can proceed within the four walls of petition, reply thereto and rejoinder, however, if the petitioner desire same can be allowed to be amended for entertaining the same to MCD.
If wife has applied for divorce and you too agree (although against the allegations levelled by her), let it be withdrawn and refiled as Mutual consent petition.
Best wishes.
Dear Ld. Mr. Nadeem Qureshi,
In fact the provisions of section 13(1A) HMA, 1955 is a prerequisite to file/ admit/entertain and proceed the petition under section 13 HMA 1955, wherein different grounds are prescribed, please correct me, if I am wrong.
Thanks and Warm Regards.
T. Kalaiselvan, Advocate
(Expert) 01 February 2015
Agreed with expert Dr. Vashista's opinion. The court has no power to pass a decree on its own on a different ground which was not prayed for by the petitioner. If you have proved that her allegations are false and wrong before the court but have expressed your unwillingness to resume marital ties with her anymore, just remain silent and watch the court to decide the case on merits, if the court is still dissolving the marriage on the grounds of impotency, you may prefer an appeal. However, if the other side is willing to withdraw the present allegations and decides to go for MCD, you may give your consent on the terms you may dictate. Consult your lawyer on further issues.
