Divorce
a k pandey
(Querist) 14 September 2012
This query is : Resolved
Husband has applied under Sec.9 HMA. Ex-partee decree has passed in his favour with decision to wife to make restitution within one month from the date of order. Decree was not obeyed by wife and after 2 months from date of decree husband applied for divorce on the grounds of cruelty and desertion. After receiving notice of divorce wife filled charges under 498A IPC, 3/4 DPA against husabnd and his parents after 9 months from leaving the matrimonial home. Later after 1-1/2 years from date of decree of sec.9 husband through application under order 6 rule 17 CPC made amendment in original application for divorce under Sec.13(1A)(ii) HMA also.
Issue was framed 1. Whether wife has done cruelty to husband? 2. Whether wife has not obeyed sec.9 order for restitution for 1 year or more period?
Later after 9 months from date of issue framed before commencement of trial wife objected for original application being premature under provisions of Sec.13(1a)(ii) and 13(1)(1b). And original application was rejected by court ordering application to be premature under provisions of Sec.13(1a)(ii).
Can husband file fresh application under provisions of Sec.13(1a)(ii)HMA in same family court, will it atract provisions of res-judiccata or go to H.C. for review where trial court judgement may be reversed and he has to further go for divorce in same family court?
Adv.R.P.Chugh
(Expert) 14 September 2012
Filing it early was a strategic error, however it can still be filed - Res Judicata won't apply to it, as it was not finally hear and decided because it could not have been maintainable in the first place. Only once a decision is made on the merits of the case does res judicata applies. You are free to file it now on such grounds.
Arun Kumar Bhagat
(Expert) 25 October 2012
You are saying that the Family Court held petition u/s 13(1a)(ii) as prematured. But in my opinion it is not prematured as the time limit of one year elapsed by then. Please be sure.
