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Rajender (law consultant)     21 May 2013

Filing divorce again

Dear All ,

      A brief about my case.We are separated since 2007 .She filed 125 in gurgaon Court in 2008 and  the case was dismissed in 2012 as she hide the important facts of her working to the court .I filed divorce in 2009 in my native which was transfered by supremcourt to her native court in 2011 .in between I paid interim maintenence of  rs 100000 to her before her 125 petition was dismissed. I wthdraw my divorce case in her native court (she asked me to withdraw divorce case  before we talk on living together  as the case was sent to mediation cell  where she again fails to appear ) in the mean time I withdraw the case without giving any reason. she turned down our talk after my withdrwl of caseat this time she was enjoying interim maintence .Now  in 125 court passed the order and dismiss her petition.

Again I file a fresh divorce case on the same ground as there was no compromise taken place b/w us and she refused to talk.Now her 125 is dismissed  and  she appeal in high court  giving facts which were not in the records during diciding that petiton.

She appear in my district court and when judge asked what she wants she says she wants to leave with me.I know she was saying as she is not getting any maintenence and her 498 also disposed off.

 

My questions are 

1-In district court my opposite layer says that this divorce petition can not be run in the court.

as this was alreay transfered by suprem court ( in suprem court my wife hide the true face of her working ).

2-Judge also says that it was withdrawn and all previous ground of divorce will be null and void and on same ground this case cant be filed.

3-where  as my layer  given some argument of res juricata and trying to convince the judge that it is oK and can be file in this court .

Please provide me some rules related to this so that it will help me .

Judge also send both of us for out side settelment but she is demanding huge amount .where as the court decided amount and i am ready to give that to her but she is refusing to accept that amount.

Please help me I am suffering since 2003.



Learning

 3 Replies

Adv k . mahesh (advocate)     21 May 2013

1.  if the first time you had withdrawn the case and now again you had filed with same points so court willl decide wheater to continue the case or to dismiss

2. if court has told to pay a amount filed a petition that you are ready to pay that amount and issue divorce 

3. if you are interested then stay with her if not then talk to her and settle the matter mutually do not bring her lawyer 

Adv k . mahesh (advocate)     21 May 2013

1.  if the first time you had withdrawn the case and now again you had filed with same points so court willl decide wheater to continue the case or to dismiss

2. if court has told to pay a amount filed a petition that you are ready to pay that amount and issue divorce 

3. if you are interested then stay with her if not then talk to her and settle the matter mutually do not bring her lawyer 

4.case can be filed again saying that the compromises terms have not settled and need divorce

Tajobsindia (Senior Partner )     21 May 2013

 

Originally posted by : Rajender

 

Observations first: This time you should have distinguished petition by adding ' 'exceptional hardship to you on account of not enough s*x in young marriage and constant denial for same by her on flimsy grounds r/w private consent terms not followed which earlier you considered and withdraw without any liberty clause which are most crucial paras second time when same cause title petition under family laws are filed in reference to context'.

1-In district court my opposite layer says that this divorce petition can not be run in the court.
Take: it can very well run till a superior Court directs so.

as this was alreay transfered by suprem court ( in suprem court my wife hide the true face of her working ).
Take: You should have attempted filing Contempt affidavit in SC then!

2-Judge also says that it was withdrawn and all previous ground of divorce will be null and void and on same ground this case cant be filed
Take: That is why I said one should have included observation para to distinguish. .Now seek liberty to file Amendments and get it allowed. Amendments are contentious paras of during - post withdrawal which are in your large brief here. Sit with seasoned petition writer and point the distinguishing 'facts'. After that the trial will proceed is my view.

3-where  as my layer  given some argument of res juricata and trying to convince the judge that it is oK and can be file in this court .
Take: I didnot understand all these short change pleadings; as res-judicta is not what he should have plead is my view.

Judge also send both of us for out side settelment but she is demanding huge amount .where as the court decided amount and i am ready to give that to her but she is refusing to accept that amount.
Take: Attempt for amendment of petition first and may also hint for judicial separation as 'same facts' parties are constantly bringing to Court which means there is something not conducive for the parties to live together under same roof. Also one may seek longer dates for mediation so that the more elapsed time parties stay out of their relationships ultimately Court may grant atleast judicial separation. Also attempt for allowing voluntary payment (which in your brief you say you are comfortable with) to wife and that may also be taken under pleadings at later date why party conduct leads to judicial separation or divorce at the end of the trial.

Live illustration now:
I
n reference case scenarios we also advise party to elasticize mutual consent payment terms wherein say if wife demands 10 L for divorce and husband also firmly wants divorce and has right now capacity to pay only 3 L then final negotiated balance payments are put in such tight terms of payments basis, such as every 3 months or 6 months this much amount and/or say every month ending this much fixed amount till such and such X year all arrears to be cleared by husband.
Recently for a husband’s case in Delhi we got more or less such terms of their negotiated final payments extended to 6 years and based on which recently got quash of S. 498a / S. 406 IPC as well as parties already ended up their  marriage by a divorce decree via MCD route.
This chap once had a very small scale industrial setup in West part of Delhi once, and due to Delhi’s sealing drive r/w acrimonious matrimony he was facing literally living on street with several IPC charges on his head and was found out that he could now a days only afford 2 K per month towards maintenance whereas balance final negotiated amount as full and final was fixed by themselves after no. of mediation rounds was 1.44 L so when both badly wanted divorce this was the only option they had to make up mind upon.
Hence it was decided in such final terms i.e. every month till next 6 years he will pay 2 K and parties will have MCD on such terms and she will co-operate in quash at Delhi HC which she did and now this chap has been keeping his per month commitment words and living a court free life and last time we spoke he said he is concentrating may be restarting his small scale industry again in nearby NCT and his ex wife has gone back to her native place which is nearby Delhi and enrolled herself in teaching profession. 
Hence it all boils down to sound planning r/w sound reasoned pleadings when one party knows for sure the other party is clear on seeking only ‘divorce’ out of such relationships so no point sticking neck in Courts and chewing precious time of Courts and yours, otherwise come what may come contest till eternity cases no one stops anyone to contest family law cases.

 

 

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