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Contested divorce,case filed on nov18,2019,hindu

(Querist) 06 October 2022 This query is : Resolved 
My daughter filed Mat suit on Nov 18,2019,my daughter & her husband both are Doctors.After sincere trying for 2 years we could not continue with this marriage regd on Dec 12 ,2017.Current status is failed Mediation.Respondent is adamant not allow my daughter to move on life.My humble queries to Learned lawers 1) How much time will take for Divorce from such Mediation 2) whether my daughter should file writ petition to Calcutta High Court under Section 40 B of Special Marriage Act 1954,since her Mat suit is nearing 3 years 3) Whether Art 21 of Costitution of India will be included of violation of fundamental right as my Daughter is 33 & her husband is 35 unable to move on life for such delay,4) Normally how much time HC takes to issue order on Family Court to speedy disposal of Divorce case,with deep regards,P.Chakraborty,Kolkata
kavksatyanarayana (Expert) 06 October 2022
Why mediation? Your daughter's marriage was performed in 2017 she may file the divorce petition in court and the case may be disposed of as possible. Does your daughter have no personal liberty to file under Art.21 of CoI?
Prakash Chakraborty (Querist) 06 October 2022
I want more reply covering my queries
T. Kalaiselvan, Advocate (Expert) 07 October 2022
If the mediation has failed and the report submitted to the trial court then the trial court would fix the trial of the case.
If your daughter is the petitioner, then she has to file her evidence and examine herself as prosecution witness, after which she will be cross examined by the respondent.
Her husband has nothing to do with this procedure of court.
He cannot prevent her from prosecuting the case if she follows the proper procedures of law.
No writ petition or any other petition would be maintainable before high court during the pendency of the case before the trial court.
For your satisfaction you can seek direction of high court to the family court for an expeditious trial by filing a petition before high court.

Prakash Chakraborty (Querist) 07 October 2022
I learn if case is pending for long time at trial court ,writ petition under section 40 B of Special Marriage Act 1954 can be filed for direction to concerned Family Court for time bound speedy disposal of Divorce case within 6 months
Prakash Chakraborty (Querist) 07 October 2022
Kindly reply on all points of my queries
T. Kalaiselvan, Advocate (Expert) 07 October 2022
If you have filed the divorce case under Hindu Marriage Act, then how can you invoke the provisions of Special marriage act for seeking relief.
There is no bar in you approaching high court seeking direction to the trial court for an expeditious trial.
You can file the writ petition or anything before high court if you know the things better.
Dr J C Vashista Online (Expert) 08 October 2022
Question-wise reply is as under:
Q 1) How much time will take for Divorce from such Mediation
Ans. Time to be taken can not be predicted or presumed since it depends upon number of factors and circumstances during litigation in mediation / Court proceeding.

Q 2) whether my daughter should file writ petition to Calcutta High Court under Section 40 B of Special Marriage Act 1954,since her Mat suit is nearing 3 years
Ans: How do you intend to apply Section 40 of the Special Marriage Act, 1954 which reads as

40. Application of Act 5 of 1908.—
Subject to the other provisions contained in this Act, and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).

Besides this, for applicability of law on the subject you did not disclose qua whether marriage of your daughter was solemnized under the provisions of Section 4 of the Special Marriage Act, 1954 or Section 5 of the Hindu Marriage Act, 1955 ?


Q 3) Whether Art 21 of Constitution of India will be included of violation of fundamental right as my Daughter is 33 & her husband is 35 unable to move on life for such delay,
Ans. No ,it do not attract or violate Article 21 of Constitution of India which reads as :
21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

Q 4) Normally how much time HC takes to issue order on Family Court to speedy disposal of Divorce case.
Ans: Time consumed by any Court in deciding a case can never be predicted / presumed, as already explained in response to your question No 1 herein above.
However, did you file a writ petition before the High Court seeking a relief of writ of mandamus to Family Court ? If so, when did you file and what is its status ?

What is the opinion and advise of the lawyer engaged / paid by your daughter who is well aware about the facts and circumstances of the case(s); intelligent enough and bound to satisfy your queries ?
Pradipta Nath (Expert) 08 October 2022
Contested divorce case takes abnormal time to get disposed of for different reasons. Better go for mutual divorce. In case one of the parties are not inclined to give divorce, contest it on proper grounds. Ensure that your Advocate do not take any unreasonable adjournments and got up with the other Advocate.
Prakash Chakraborty (Querist) 08 October 2022
Mr Pradipta Nath,Thank you for your reply,we tried MCD thrice,once before filing Divorce & twice after Divorce filing.Each time Respondent back out after initial agreeing. Our Divorce case based on Cruelty& Domestic violence,case has been filed under DV Act also.It is observed that 7 months took for Mediation,initial delays by Respondent on appearance,Mediator resigned, substitute Mediator died at final stage of opponent's Mediation,So pl advise any other way for speedy disposal of our Divorce case,
Prakash Chakraborty (Querist) 08 October 2022
Dr J.C.Vashista,Thank you Sir for your kind detailed reply. My daughter married under Special Marriage Act 1954. Our Lawer is from Calcutta High Court says our case can be breakable marriage due "Failed Mediation report',we are also taking opinion from imminent lawer like you for filing Writ Petition to Calcutta High under Section 40b of Special Marriage Act 1954,Pl advise,Regards,Chakraborty
Pradipta Nath (Expert) 08 October 2022
You can file writ petition under Article 227 for complying section 49B. Invoking of Article 21 depends upon the circumstances of case. In my opinion it is a fundamental right of every citizen to move forward in life when there is no chance of reunion. The other party is delaying the process is also to be placed before the HC.
Prakash Chakraborty (Querist) 08 October 2022
Mr Pradipta Nath, Sir thank you for your kind reply.It will be useful for us,regards,Chakraborty.


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