Pre requisites of filing divorce
Astha
(Querist) 30 June 2016
This query is : Resolved
Hi,
I would like to know if there are any prerequisites of filling divorce under 13(1) (i-a)? In other words before someone files petition for divorce under section 13 (1) (i-a) of HINDU MARRIAGE ACT, 1955 are there preconditions which need to be met?
Thanks,
Astha
Devajyoti Barman
(Expert) 30 June 2016
There is no precondition except one year of time from date of marriage and commission of physical or mental cruelty on the petitioner.
Rajendra K Goyal
(Expert) 30 June 2016
Academic query, state material facts of the problem.
R.K Nanda
(Expert) 30 June 2016
Academic query.
Astha
(Querist) 03 July 2016
Thanks for response. I would like to give little background of the issue. My husband has done physical or mental cruelty towards me in foreign country. Due to which that countries police has filed criminal case against him. His crime has been testified during police investigation. Court has produced bill of indictment against him and sent him summon for trial. Knowing the possible outcomes of the trail he safely escaped to India. After coming to India he filed divorce petition in India under section 13 (1) (i-a) of HINDU MARRIAGE ACT, 1955.
Case is pending in family court India, is in cross examination stage of contest.
We are trying to go for mutual consent settlement, but he is putting a condition to give a written statement that I will not say anything in foreign country court about his conduct or state that I do not want to pursue the case there or I have no claims or cases against him anywhere in the world.
Irony is that since I am employed in that country giving such statement might not be in my favor or impact my credibility staying there. And since this case is filed by police I do not have rights to state anything.
I have already spent lot of money in travelling back and forth and still counting, legal fees in India and this country in addition to immense stress I am going through.
I urgently require expert advice to help me find a way to get this matter settled without providing written statement about case in abroad.
Another point is that we own joint property in India; we both equally contributed towards down payment and EMI. But for last 6 months he made me look like primary owner (in reality he is the primary owner and I am co- borrower) and somehow influenced bank to chase me for EMI payment. EMI payment is more 50K per month which is causing me additional financial difficulties. What can I do to ensure he equally contributes towards EMI until matter is closed?
I have not been given any interim alimony! What is the process to request for same?
Appreciate your expert guidance.
Thanks and regards,
Astha.
Devajyoti Barman
(Expert) 04 July 2016
The proposal in writing needs to be seen to advise further.
Dr J C Vashista
(Expert) 06 July 2016
@ Astha,
What is the opinion and advise of your lawyer, who is contesting your case(s)?
What for do you need second advise of the experts on this platform, probably, because it is FREE OF COST?
Or you have lost faith in your lawyer? If so, change him/her immediately.
Being an educated, intelligent and well placed person (both of you working abroad) you can very well afford to seek advise from another prudent local lawyer, close this thread.
Best wishes
Astha
(Querist) 27 September 2016
Thanks sir for your advice. I have changed lawyer and also filed for I have done objection as well and in good stage to win the case. However now with the other party it was agreed to file 13 B. But during the court hearing my husband’s lawyer came up with new suggestion to go for compromise petition as per high court judgement stated in following link -http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/125547/1/WP18961-16-28-07-2016.pdf.
My concern is it OK to go ahead with this suggested compromise or 13 B is the best way to get divorce.
My concern is that my husband might not comply with his terms which will be agreed in Mediation session if going for section 89 judgment as stated in above link.
My new lawyer has left this decision on me but I do not feel certain about it.
As I understand my husband does not have good intention to transfer his share of property to me even though I have agreed to give him statement for cooperating in criminal case pending against him in foreign court.
I really need your help to guide me through this matter.
Appreciate your prompt response.
Thanks,
Astha
Dr J C Vashista
(Expert) 28 September 2016
No opinion/advise can be given without going through case file, discuss with your lawyer who is contesting your case(s).
Rajendra K Goyal
(Expert) 28 September 2016
Your lawyer can draft MOU to protect your interest and file Mutual consent divorce.
If other party does not cooperate, you can avoid / refuse to appear in second motion till full agreement is implemented as agreed.
Without referring / knowing full case details / related documents / case file, nothing can be advised. Discuss with your lawyer.
