Sec 13 of hindu marriage act, 1955
PARTHA SARKAR
(Querist) 05 March 2012
This query is : Resolved
Kindly advise as per the following facts to file WS:
During pendency of the RCR decree execution case wife affirmed through show cause that she wants to comply with the decree i.e. wants to stay with her husband.
1. During pendency of the above suit if she filed divorce suit on false ground (documentary edivence available) at her own place will it attract constructive Res-judicata or Orer 7 Rule 11 (rejection of pliant)of CPC or supression of facts or any others?
2. She did not appeared in the RCR case but later appeared in the decree execution case. Through show cause have stated different fresh allegations.
3. Diffrent allegations on same cause of action in two different cases which section or order of CPC attracting?
Adv.R.P.Chugh
(Expert) 05 March 2012
1) No Divorce is clearly maintainable - it is preposterous to suggest that it attracts constructive res judicata, her's is a seperate cause of action - for which she can sue seperately.
2) You may try pleading estoppel - that she cannot be allowed to breathe hot and cold in different proceedings but let me tell you it would a feeble argument, for there is no estoppel against the law, and she has a indefeasible right to sue for divorce.
3) No question of O7 R11 - there is no bar/good cause of action.
4) Suppresio Veri - though in extreme case may lead to rejection of plaint - but it doesn't look to be the case here.
As regards point 2) Much can't be said - the executing court can only deal with matters related to execution,discharge or satisfaction of the decree - not to go into her allegations - which in all probability pertain to merits of the matter. Court should attach her property.
Adv.R.P.Chugh
(Expert) 05 March 2012
1) No Divorce is clearly maintainable - it is preposterous to suggest that it attracts constructive res judicata, her's is a seperate cause of action - for which she can sue seperately.
2) You may try pleading estoppel - that she cannot be allowed to breathe hot and cold in different proceedings but let me tell you it would a feeble argument, for there is no estoppel against the law, and she has a indefeasible right to sue for divorce.
3) No question of O7 R11 - there is no bar/good cause of action.
4) Suppresio Veri - though in extreme case may lead to rejection of plaint - but it doesn't look to be the case here.
As regards point 2) Much can't be said - the executing court can only deal with matters related to execution,discharge or satisfaction of the decree - not to go into her allegations - which in all probability pertain to merits of the matter. Court should attach her property.
prabhakar singh
(Expert) 05 March 2012
I am bound to say Adv. Bharat Chugh is right.
Raj Kumar Makkad
(Expert) 05 March 2012
I am of the view that your wife is creating sufficient material fatal for her her petition filed for seeking divorce.
She is not only guilty of suppression of material fact of pendancy of the RCR execution petition and her statement to execute the petition (RCR) but she is making contradictory statements in both petitions which ultimately stand against her.
Order 21 Rule 32 is the only provision vide which RCR decree can be got executed.
You should obtain the certified copies of the RCR decree, Executive petition, Show cause notice, her reply and statement and should put the same in the written statement in the subsequent petition filed by her seeking divorce and should pray to dismiss the petition on that single ground though Order 7 rule 11 of CPC is not applicable thereto but law of estoppel is definitely applicable.
No one can make law as a tool for mockery. If one do not come to the court with clean hands, courts can shunt him/her out as held in various pronouncements of different courts.
Shonee Kapoor
(Expert) 06 March 2012
I agree with Ld. Chugh and Ld. Mr. Makkad.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
