498a
Ash
(Querist) 11 November 2011
This query is : Resolved
1) I got married in 1998 ( satpudi ). But registered my marriage in 2009 under Special marriage act.
2) my wife left for her native place in 2009. And has not returned since.
My wife has filed a civil case (498 not filed yet). And for maintenance .
Q : a) onwht grounds shud I fight the case ? Special marriage or Desertion .... Or both ?
b) Can they file for 498 now?
Any other precaution or advice?
Devajyoti Barman
(Expert) 11 November 2011
a. What civil case?
Both HMA nd SMA applies here.
Unless we know the nature of suit and your priority , it would be difficult to advise on your line of offence or defence.
b. Yes very much.
You may file suit for RCR.
Ash
(Querist) 11 November 2011
She has filed for RCR ( HMA)..... I wud want to contest it saying that it was registered in 2009 under SMA. Cos I understand - maintenance amt will be lower in SMA ( cos of CRPC 125).
Pls advise.
Devajyoti Barman
(Expert) 11 November 2011
No, you are wrongly informed.
No difference would be made.
Ash
(Querist) 11 November 2011
Mr Barman , u mean to say I hav no advantage fighting under SMA ?
Thn wht is CRPC 125? Under why circumstances can it be used ?
Shonee Kapoor
(Expert) 11 November 2011
I diagree, SMA would apply as the marriage is now registered under Special Marriage Act.
A person who though married under personal laws, registers his marriage under Special Marriage Act is governed by Special Marriage Act from the date of registration.
One of the reasons Muslims at very advanced stage do so to avoid Transfer of Property by Muslim laws. Their property after registration of marriage in SMA is governed by Indian Succession Act
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Ash
(Querist) 11 November 2011
Also, due to desertion , can I avoid the maintenance ?
But proving that she went on her own wud be a tough task.
Judiciary is free to assume that she was beaten etc and made to move out of house, for which no evidence is asked I guess?
Devajyoti Barman
(Expert) 12 November 2011
Dear Mr Shonee there is no provision of law whereby it is prescribed that if the marriage is subsequently registered under any marriage law, the parties would be governed only by that act and not by the HMA only because the ritualistic marriage was soemnised earlier than the date of registration.
The thousands of cases in every year are filed and disposed of in either of the Acts when the parties are governed by both the Acts.
Devajyoti Barman
(Expert) 12 November 2011
In answer to the author, unless you prove that your wife has left her marital on your own, you can not avoid the maintenance.
Unfortunately even the supreme court does not recognise the divorce on the ground of desertion of the wife enough reason to avoid maintenance.
Ash
(Querist) 13 November 2011
Pls can I have any case (link or otherwise ) of SMA prevailing over Satpudi . secondly, I ws told by my lawyer tht Desertion is a gud enough reason for Divorce & to avoid maintenance ( hav read some cases on ths site ). Pls advice.
