A wife filed a petition and sought relief of dissoloution of marriage on the ground of cruelty. Husband opposed the petiton and filed a counter claim under S.23A and sought relief of dissoloution of marriage on the ground of cruelty.
As both the parties have sought the same relief, can not the court straight away grant the relief to the parties and dispense with the trial?
Is the court still required to conduct a trial to find out which of the two was cruel before granting the relief?
Y V Vishweshwar Rao (Advocate ) 29 May 2010
The Case of the Petitioner-wife is that Husband is Cruel and the same is allegation agaisnt her husband - to be proved
The Case of the Respondnet - Husband - Counter Claim Petitioner is that his wife is Cruel and the same is allegation agaisnt his wife - to be proved
It is better both should be advised to file a Consnet Divorce Petition U/s 13- B - with out mentioning of the allegatiosn each other !
N.K.Assumi (Advocate) 29 May 2010
I am of the view that in either way the marriage is on the rock beyound redemption, and the court should proceeds and grant dissolutions of the marriage.
Pranjal Srivastava (Lawyer) 29 May 2010
In Divorce cases consent under O.23 R.3 of CPC not aplicable.
In the case you mention the court will convert your case in 13 B .there is no requirment of fresh petition
Go with case of Rupa Reddy vs Prabhakar Reddy AIR 1994 Karnataka 12.
wow excellent que. too similar to my case. 4 yrs back my wife filed for divorce S. 13 (1) (ia) (ib) and I filed for divorce U/s. 23 A HMA as well as a seperate application few months after U/s. 151 CPC asking for same relief but not accepting to her cruelties.
We later converted our respective application to S. 13 B by becoming joint petitioners to MCD. At time of first statement recording she hesitated under the (whisper) influence of her then counsel and said to court to give her time to think about it.
BTW the meter of coolign period started once we filed MCD It took her 12 months to think about giving recored consent and then after 12 months I filed Memo to Court to ask both petitioners if we still want to go MCD route. During those days Court refused askign this que. base don my Memo to Court, resulting me out of frustration to withdraw my consent from such MCD and I said let us now contest it :-) Well just 1 week after my unilateral withdrawl of MCD pops a judgment from Hon'ble SC that it is must for the Court to ask consent of parties in MCD but I was 1 week late there :-)
Now since I converted my S. 23 A into S. 13 B I recently once again filed S. 23 A with new facts by simultaneously pleading U/O 8 R 2 CPC 'new facts" thereby setting fresh cause of action since I am defendent to her divorce petiotion.
More news soon anyhow our marriage is under hard volcano mud rocks so all trial errors and "fault theory" based proceedings rutt I am forced to experiment before court, I will update soon the climax as I hv no other options other than to be at mercy of trial courts application of mind. That is why I wonder if law is n the Books or in the minds of various Lordships and/or as they may please at the end of the day :-)
Rgds
Pranjal Srivastava (Lawyer) 30 May 2010
Respected Anil Sir,
Order 23 R 3 Apllies only there , where the Compromise is not void ,voidable or illigel as per contract act.
here Divorce can not be made on the basis of Contract between husband and wife. Even there is compromise in 13 B but it should be presented Before Court For passing Decree of divorce.
parties them selves can not take divorce by themselves as contract of divorce
Y V Vishweshwar Rao (Advocate ) 30 May 2010
I agree with the explanation given by Shri P Srivastava
Even under O.23 R.3 Compromise has to be presented before the Court who will then pass a Consent decree.
Besides after introduction of 13B Consent/agreement/compromise is not unlawful under the contract act. If the trial court pass such a consent decree under O.23 R.3 can it be faulted? If so what are the grounds on which you would find fault with such a decree?
Arup (UNEMPLOYED) 30 May 2010
both husband and wife has the right to file case under their own cause. ofcourse they have the right to pray u/s 13b hma, otherwise both the case may going on in the same court and will be decided with the merits and demerits of the case. HMA & SMA has this provision within the act.
Arup (UNEMPLOYED) 30 May 2010
o 23 r 3 deals the diffrent matter. not applicable to such cases.
HMA & SMA has sufficient power to deal such case.
Please read S 23 of HMA 1955, It starts with
"In any proceeding under this Act"
Subs section 1 (bb) reads
"When a divorce is sought on the ground of mutual consent"
Sub section (e) reads
"there is no other legal ground why relief should not be granted....the Court shall decree such relief accordingly"
According to me, In any proceeding under this Act" takes within its fold proceedings under Section 13 and if during the course of s.13 proceedings, divorce is sought on the ground of mutual consent, it would be a case of decree under O.23 R.3 of CPC and hence I feel such a decree would have legal sanctity despite such a consent decree not having been filed under S.13B of HMA 1955.
This issue has been decided by the Division Bench of the Bombay High Court on 6th May 2011.
Visit the following site https://www.indiankanoon.org/doc/1660080/ for the full judgment.
Arup (UNEMPLOYED) 08 May 2011
Provisions of the petition under sec 13 and sec 13b are sepeerate and within the hma act.
petition under sec 13 can not be converted into sec 13b.
sec 13 is a complaint case and a decission under sec 13 will be based upon themerits and demerits of the complain.
sec 13 b, which requires joint petition for divorce does not provide any scope of judicial interference in the matrimonial matter. it is personal liberty of both the parties.
the diffrence should be understand and proceed accordingly.
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