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Wife filed amendment in plaint uner order vi rule 17 of cpc

(Querist) 17 April 2014 This query is : Resolved 
Hello Friends,

Wife Filed Divorce under HMA Section 12 after 4.5 years of Marriage with the ground
that she has been harrassed for Dowry (treated with Cruilty) & she has been deserted for last 4 years with 498 & CrPC 125. Husband Objected the Divorce under Sect 12 after 5 years & requested to close the case as Sect 12 is not valid ground after 4.5 years of marriage.
Husband is already having the RCR decree.(Ex-Partee as wife never appeared for RCR in court)

Now wife has requested to Court with modified affadavit that it was a typing mistake
& the case need to be modified under CPC Section 6 Rule 17 from Section 12 to Section 13 1(a) & 13 1(b)

Husband objected strongly.Judge threatened to Husband for Contempt of Court.
Judge asked husband to provide say on their modification request.

Husband's lawyer is always saying from the begining that it is a typing mistake.

Husband already submitted in his say that since he has RCR & he want his wife back, Please close this case. What are the possible options open for Husband for his reply to this case?
Devajyoti Barman (Expert) 17 April 2014
Pleading of respective parties needs to be seen.
The husband could file petition under res judicata.
T. Kalaiselvan, Advocate Online (Expert) 18 April 2014
If she filed the petition u/s 12 of HMA, what was the prayer made in her petition ?, to annul the marriage or had sought decree of divorce on the grounds of cruelty and desertion?, If there is an exparte RCR order in favor of the husband, it can be very well included in the pleadings in the written statement/counter to the main petition, the judge will not threaten the litigant, do not put unnecessary blames, challenge her case if you have strong points, or if you had filed RCR only to avoid paying her maintenance amount, then face the case accordingly. The law of Resjudicata will not apply here.
Dr J C Vashista (Expert) 18 April 2014
1.There are number of issues involved in the query, therefore, it is imperative to go through entire pleadings and proceedings before providing any opinion on the subject matter.
2. However, after 4.5 years of marriage, petition u/s 12 HMA is not maintainable. In order to move petition u/s 13 HMA the petitioner has to withdraw earlier petition with liberty to refile.
3. No contempt of court can be initiated/ maintainable.
Rajendra K Goyal (Expert) 18 April 2014
Consult a local lawyer and show him all the documents.
Abhimanyu (Querist) 19 April 2014
In her origional petition for Section 12 her prayer was
1. by splitting this marriage the plaintiff must get divorce from the respondent.
2. Applicant has to get full recovery of Litigation expenses as XX thousand &
3. Applicant has to get permanent alimony of Rs XX lacs with her Sridhan back ....which is in her in Law's possession.

Now after I put my in my Say & additional say before framing of issues, that this is not valid to apply for Divorce under Section 12 & the case has to be dismissed due to filing under wrong section of HMA.

Now she filed with new modified affidavit the request to amend the Section from 12 to Section 13 1(a) & 13 1(b) and claimed that it was due to typing mistake of typist & they only came to know when Husband filed for dismissal due to filing under wrong section 12. So please modify this case to Divorce under Section 13 1(a) & 13 1(b). Now the Husband need to file the Say on this.
ROHIT SHARMA (Expert) 20 April 2014
Dear Mr Abhimanyu,

1. To escape from the issue of the liability of paying her interim maintenance and or alimony which is likely to arise from her amended petition for divorce then you may as well take the advantage of the R.C.R. decree and have such marriage dissolved as by invoking the provision u/s 13 (1-A)(ii) of H.M. Act, 1955 before her petition is heard.

2. If need be talk to this lawyer.

Adv. Rohit Sharma.
(B.Sc. L.L.B. L.L.M.)
(M) 09824047971.
E- Mail : lawgate1349@gmail.com.


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