(Querist) 21 December 2008
This query is : Resolved
Dear Sir, Is it possible to get mutual divorce within one year given the fact that the husband and wife lived together for only 5 days. Can we refer the mutual divorce ordered by Delhi HC for a mraaigage that lasted only 8 months. Here are the parties. SH. TARUN KUMAR VAISH Petitioner VERSUS MS. MEENAKSHI VAISH
Below is the reasons mentioned for the divorce in the judgement. " The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:-
(a) the maturity and the comprehension of the spouses;
(b) absence of coercion/intimidation/undue influence;
(c) the duration of the marriage sought to be dissolved;
(d) absence of any possibility of reconciliation;
(e) lack of frivolity;
(f) lack of misrepresentation or concealment
(g) the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. "
Please also clarify if nullity be ordered in case the alleged force on either party is DENEID but still the party is OK with the annullment.
1. In short, I am trying to know if the marriage can be dissolved either by mutual consent or by annulment ( inspite of denial of force) within one year.
2. What is the legal validity of a MoU or a compromise deed in case of a nullity or divorce.
anantha krishna n.v. Advocate
(Expert) 21 December 2008
"Nullity denied but OK" is nothing but collusion between parties. You need to aver in your petition that there is no collusion between parties. Hence this is not possible if the denial and acceptance is expressed.
Marriage can be dissolved within one year with permission under Sec.14 of the HMA 1955. legal validity of MOU is as good as any agreement. regards
(Expert) 22 December 2008
The mutual consent petition can be filed after a year in order to give chance for both the parties to come forward for some concilation. as mentoned in your query about the Tarun case law, can u forward the same if existing with u it will throw some light overyour query
(Querist) 23 December 2008
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : HMA : DIVORCE
Date of Decision : 13th April, 2005
CM (M) No. 70/2005 & CM 609/2005
SH. TARUN KUMAR VAISH ..... Petitioner
Through Ms. Ritu Sobti, Advocate
MS. MEENAKSHI VAISH ..... Respondent
Through Mr. Ajay Kohli, Advocate
MUKUL MUDGAL J. (ORAL)
1. Rule. With the consent of the counsel for the parties, the petition is taken up for final hearing.
2. This petition under Article 227 of the Constitution of India, challenges the Order dated 27th July, 2004, passed by the Additional District Judge in HMA.No.591 of 2004, by which an application moved by which an application moved on 13th July, 2004 by both the parties, that is, the petitioner, Sh. Tarun Kumar Vaish and the respondent, Ms. Meenakshi Vaish, seeking permission to present the petition under Section 13-B of the Hindu Marriage Act, 1955(in short the `HMA') for divorce, by mutual consent prior to the expiry of one year from the date of marriage of the parties, that is, 30th April, 2004 was rejected and accordingly the petition under Section 13B of the HMA Act was dismissed.
3. The relevant portion of the proviso to Section 14 of the HMA reads as follows:-
14(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage :
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
4. Both the parties have contended that their plea for exemption from waiting for one year under proviso under Section 14(1) of the Act should have been granted since the parties have been living separately since 14th May, 2005 and the marriage has not even been consummated. It has further been contended that the parties have irreconcilable differences between them and that they will suffer mental as well as physical hardship on account of the continuation of their marriage. It has also been submitted that the families of both the parties have already initiated the process of re-marrying them.
5. On these grounds, the exemption for presenting the petition under Section 13(B) (1) of the Act prior to the one year from the date of the marriage, that is, 30th April, 2004 was sought. The impugned Order dated 27th July, 2004 has noted that the exceptional hardship has not been explained by the parties and as such the petition was dismissed on the ground that it was premature and that there was no justification to waive the statutory period of one year.
RAKHI BUDHIRAJA ADVOCATE
(Expert) 26 December 2008
Yes, u can file a divorce petition by mutual condition.U can file it with the district Courts itself. For any type of help u can contact me at: firstname.lastname@example.org Mb-09711364956 Off,-253, Aggarwal Shopping Complex, CD-block, Pitampura, Delhi
(Expert) 03 April 2009
thanx for the valuableinfo all my ld. friends
(Expert) 05 April 2009
I do agree with the valuable opinions of the learned members. Thanks all of you.