Maintainability of divorce petition filed within 1-yr

On what ground the judge is telling the petition is not maintainable?

If your marriage was not registered under Special Marriage Act, then, the petition is not maintainable, despite both being christians.  If it was registered under SMA, it is maintainable.

If according to judge, as the petition was filed within one year of the marriage, then you can argue that as the case has been running more than 3 years, it is only technical aberration at this point of time and can be ignored to deliver substantial justice.  But, you should have filed application along with divorce petition seeking the leave to file the divorce petition within one year of marriage.

Sir, Thank you for the reply. The opposite lawyer's contention is 'as the petition was filed within completion of 1 year of marriage, the petition should be dismissed. We dint file leave application also.

In our Church, what happens is, when anyone get married, they take signature along with witnessed on marriage register and later on send it to registrar of marriages and get the said marriage registered.  This I know as I have seen other people know do it.  The register where we sign in the marriage register of the church is it being taken to registrar office or not I don’t know fully.  But my lawyer filed my divorce petition under Special Marriage Act and the Judge of Family Court also considered while allowing IA under Indian Divorce Act and not under Special Marriage Act as opposite party lawyer had quoted Indian Divorce Act for claiming IA.

 

I just want to get through this.  Without filing another petition for divorce.  Already 3 years over. Please advice.

Sujay,

 

If you post 1000s of threads with the same query, you won't get your answers quickly.

 

If you had not filed leave of court for presenting divorce application within One Year, technically the judge is right. However, you can file Writ to get the same restored in the interest of justice.

 

It would be cumbersome procedure, but then all matrimonial litigations are.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

Thank you for the reply shonee sir.

 

Any citations in previous judgements with regard to my type of case if you know.  Please tell.  So that I can quote in writ petition.

Mr. Sujay,

After going your latest post, again I got doubt.  Why the judge is telling that the case is not maintainable?  Whether it is one year restriction or it is filed under Special Marriage Act.  The church will not register your marriage under SMA.  You and your wife should go there and file application and get it registered 30 days after application.  Then you will be given marriage certificate under Special Marriage Act.  Only those couple can apply for divorce under Special Marriage Act.  Otherwise, that Act is not applicable.  Your narration shows your marriage is registered under Christian Marriage Act and not under Special Marriage Act.  If it is so, your divorce petition will be dismissed.  So clearly clarify whether you have marriage certificate under SMA and whether you filed marriage certificate under Special Marriage Act along with the divorce petiton or not.  This point required to be clarified before taking the second objection of one year restriction into consideration.

Dear sir,

 

Why the judge is telling that the case is not maintainable?

 

Judge read from some law books which I quote here “(1) Subs. by Act 68 of 1976, s. 25, for certain words.

 

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    (b) that proceedings were instituted within a year from the date of the marriage; and ”

 

And

 

29. Restriction on petitions for divorce during first three years after marriage.-

(1) No petition for divorce shall be presented to the district court 3[ unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book: Provided that the district court may, upon application being made to it, allow a petition to be presented 3[ before one year has passed] on the ground that the case is one of exceptional hardship suffered by the…

 

 

Whether it is one year restriction or it is filed under Special Marriage Act.  ?

 

It is one year restriction.  As I filed for divorce one week before completion of one year of marriage.  ie 18-3-2008 got married filed divorce on 11-3-2009.  Divorce petition filed under section 29 (1) of Special Marriage Act.

 

 

 

The church will not register your marriage under SMA.  You and your wife should go there and file application and get it registered 30 days after application.  Then you will be given marriage certificate under Special Marriage Act.  Only those couple can apply for divorce under Special Marriage Act.  Otherwise, that Act is not applicable. 

 

This I did not know.  Matter of fact, we gotten married in presence of elders.  We were required to sign in the marriage register with witness of our elders in the register.  We did not go to registrar for getting marriage registered.  All this while we had thought that the register will be taken to registrar and marriage is registered there in the registrar office too.

 

 

So clearly clarify whether you have marriage certificate under SMA and whether you filed marriage certificate under Special Marriage Act along with the divorce petiton or not. 

 

I do not have a marriage certificate under SMA, but what I do have is certificate given by Church of South India Church.

 

 

 Questions in my mind:

 

 

1.  Now I contacted my lawyer and he is telling we file new divorce petition.  Could it be done like that?  If done also what will be the implications?

 

Firstly what led me to filing divorce is the fact that my wife and her parents and relatives had plans to get me and my parents into prison by filing false case under 498a, which could not be done, but she tried doing that by giving false complaint while we were staying together to local PS that I was torturing her, police enquired and found that she was lying and the complaint was dismissed, after which I filed divorce petition.  I have already paid all the interim alimony till date which was ordered by family court judge.  Can I get the alimony back if case is dismissed?'

 

In the meantime, wife also filed DV act case in 2010 july which being false when we went appeal to session and high courts, the case was set aside.

 

How to go ahead. Please tell.

 

The first objection of one year can be crossed over by intelligent and persuasive arguments.  If the judge does not accept your argument, then High court will certainly come to your aid.

But the second objection of maintainability under SMA, no one can help you.  Your marriage was registered under Christian Marriage Act, and you can get divorce only under Indian divorce Act.  It appears to me that you have to file a fresh divorce petition under divorce Act applicable to Christians.  You cannot recover the IM paid to her.

Thank you for the suggestion sir.  But what about 3 year peroid loss for me?  They wont come back.. forget money.. my life's 3 years gone without nothing being done.  Again new petition. again some more years.. Dont know what to make of all this.

Now while filing divorce under Indian Divorce Act which is applicable to christians, under which section should be the divorce filed.  Please tell.