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Rakesh Agr (fighter)     04 February 2019

Application for dismissal of interim maintenance application

Wife had filed divorce under due to cruelty under section 27(1)(D) Special Marriage Act (SMA). Then she filed a MISC case of interim maintenance under section 36 of SMA. However she knows her guilt and is delaying the interim (and thereby main divorce) case.

On next date I want to submit an application requesting dismissal of interim application (MISC case) and proceed with the main divorce case under section 27(1)(D). 

Can you please let me know which CPC (or SMA) I should write the application and/or what should be the contents ? As of now I plan to write a simple application highlighting her delay tactics and pray for dismissisal of the MISC (interim) case.


 1 Replies

Suhail suhail (LAWYER)     04 February 2019

Just file the application under section 34 SMA;

4. Duty of court in passing decrees

(1) In any proceeding under Chapter V or Chapter VI, whether defended or not, if the court is satisfied that,-


(a) any of the grounds for granting relief exists ; and


(b) 36[where the petition is founded on the ground specified in clause (a) of sub-section (1) of section 27, the petitioner has not in any manner been accessory to or connived at or condoned the act of s*xual intercourse referred to therein,] or, where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty ; and


(c) when divorce is sought on the ground of mutual consent, such consent  has not been obtained by force, fraud or undue influence ; and


(d) the petition is not presented or prosecuted in collusion with the respondent ; and


(e) there has not been any unnecessary or improper delay in instituting the proceedings ; and


(f) there is no other legal ground why the relief should not be granted ;

then, and in such a case, but not otherwise, the court shall decree such relief accordingly.


(2) Before proceeding to grant any relief under this Act it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties :


37[Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (c), clause (e), clause (f), clause (g) and clause (h) of sub-section (1) of section 27.]


37[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.


(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]


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