cpc

18hama & 24 hma (interim)

In search of job

Dear Experts,

I filed for divorce in july 2007 on the grounds of cruelty 13(1)(i-a), stating that wife doesn't allow for consummation and frequently deserting husband and staying with her parents. Girl, replies (files counter) after 1 1/2 years (i.e Dec'2008), that husband impotent and need divorce due to impotency as the reason and with damages and files maintainance cases (18HAMA & 24HMA) as the cruelty caused due to biological inconvenience and thus cruelty.

Can I reject the maintainance claim under the following grounds?

(1) Under desertion (since the last we stayed together Apr'2006)

(2) Since, she herself is accepting that there is no consummation, nullity of the marriage and and until the impotency is not proved, can we pray court not to grant any interim maintainance? Actually, in these circumstances, can she file for a maintainance at all, since non-consummation amounts to voidable marriage hence no maintainance?

Please clarify

 

Thanks,

Naresh

 
Reply   
 
Adv P & H High Court Chandigarh

You can deny very much in the given facts but beware you shall thus accepting her plea of impotency. If you deny for that situation then you shall be liable to pay and if accept her plea then your plea can be executed.

 
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In search of job

 

Dear Sir,

Thank you for the reply. Why are you (or the court may) only interpret that by denying maintainance, I am accepting her plea of impotency. I have in my petition already mentioned that she was not allowing consummation, and why can not it be interpreted that it is possible that she was showing cruelty by not allowing consummation and it is very much possible that this girl, if not happy for whatever reason, other than stated in the affidavit with the matrimonial house/husband does not suit to her imagined kind of life-style will always look out for some ways of getting rid of husbands by way of these allegations to get out of matrimonial houses.

(1) Will the courts until she prove that i am impotent, allow her maintainance? under the above said sections?

(2) If the girl states that she is virgin and ready to prove she is virgin and (proving her virginity) it proves that husband is impotent, will the court accept this argument (view)? It is also, possible that she could have deliberately avoided husband and is now claiming husband impotent. Can court not see from this angle?

(3) Suppose, If I get certificate or reports that I am potent as a documentary evidence, in such a case, what view the honorable court will take?

(4) How to prove conclusively (kind of evidences), to court for court to believe. Or can I plead to court that until my impotency/potency is proved, court should not order maintainance?

(5) It is very clear, that they are of the view that if the court grants good maintainance from the date of application, then they would get hefty amount as maintainance.? thus their greed will be satisfied?</p>

(6) If suppose, court do allow maintainance and later it is found out that her allegation is false, then is there a provision to recover the paid maintainance?</p>

(7) Also, please suggest me, if the doctors would agree to give a certificate, unless the court orders for the impotency test? Are there any prior examples (cases) to your knowledge?</p>

 
Reply   
 

impotency is subject to determination by court on the basis of medical test.. you oppose the maintenance claim on the ground of desertation and false charge of impotence. try at local court, if they give maintenance order ignoring desertation and cruelty pending, go to HC with the same plea and try to get  an interim order.

 
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law tells a lot but in practice, what you once paid, the amount gone for ever.

 
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when you know that you are not impotent, rest questions on impotency are meaningless. let the court ordered for medical test.  

 
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Family Counsellor

Naresh,

Since you are claiming that the marriage has not been consumated, and she is telling that you are impotent, try to convert the petition into annulment, so that you cannot have to pay any maintenance under any sections or acts. Also, mearly accepting the non consumption of the marriage in way of impotence is enough for you to prove that you are potent and dismiss all her claims. Divorce will be granted immediately.

 
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In search of job

Dear Hardik sir,

 

Can you please further explain more clearly, your statement that "Also, mearly accepting the non consumption of the marriage in way of impotence is enough for you to prove that you are potent and dismiss all her claims. Divorce will be granted immediately." 

 

Thank you all

 
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In search of job

Dear Experts,

 

Could you please enlighten me, whether is it possible now to convert my divorce petition under section 13(i)(1-a) under cruelty grounds to annulment (voidable marriages for under 12(1)(a) for impotency, i don't remember exactly what is that section for annulment of marriage). But as suggested by hardik sir, can I submit a memo, to do the above thing to court, will the court accept it?

 

Thanking  you all sirs

 
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