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rajverma   02 January 2015

Divorce according to hma

Hi Everyone

 

I am writing on behalf of one of my brother.

 

He got married in 2007 April with a girl who had an affair with a married man. She ran away with her bf after 10 days and never been found.

 

Then Girl's father files a FIR saying she ran away and written presented himself in court with my brother and written on a affidavit saying she ran away and our family has nothing to do with it.

 

After 3 months it was mutually agreed with Bride(who ran away with bf)'s sister that she will get married to my brother, with only one condition that she wants to continue her studies( which was not a prob at all)

 

When this 2nd sister got married to my brother after few months she started saying she does not want to live here and we found out she had an affair as well, which we informed to her parents but they were not bothered and try to cover up, which we forget. She was enrolled at uni for MBA she failed in all semesters except one. She then had a condition that my brother give up his business and work in the home town only. He did that as he wanted to have a good family peaceful life.

 

Every few months she had problem and used to go away to her parents’ house and my brother and parents used to go and accept her conditions and bring her home.

 

Then my brother and she had a baby boy, all was ok, but again she lost her plot and started acting same like old behaviour. She demanded we put money and house on her name and asked my brother to leave my elderly parents, my brother refused. she then started threatening to do suicide and send everyone to jail.

 

In Oct 2012 she cooking separately in house and stopped talking to everyone at home and even she used to stop 3 year old boy not to interact with any of the family member. Anyways her father came to take her for a week but she never come back.

 

In 2013 my brother filed a case to bring her back at home but they never attended any court hearing. So then Judge said this is invalid marriage and invalid child as when they got married my brother did not get a divorce from 1st wife, so Judge advised to get divorce from 1st wife.

 

My brother filed a divorce from 1st wife in August 2014, (Aug 2014 my granddad, in sept my father then in Nov my aunty passed away) after all stress in family inOct she sent someone saying she need security and wants 25lacs. We refused and advised if she need any money including Child Maintenance she need to apply through court.

 

Now in Nov 2014 she filed a case in Women cell saying my brother, sister and mum used to do Domestic violence to her and was asking her Dowry. And in her file she written down all pathetic things and made big issues and not mentioning about anything all the mental stress she created for all of us.

J U D G M E N T

1. Petitioner Jatinder Verma has filed this petition under

Section 9 of Hindu Marriage Act, against the respondent for grant of

decree for restitution of Conjugal Right.

2. The brief facts of the case of the petitioner are that the

marriage between the parties to the petition was solemnized on

29.07.2007 at Chandigarh as per Sikh Rights and Ceremonies. The status

and place of residence of parties to the petition before marriage and at the After the marriage, the parties to the petition lived and

cohabited together as husband and wife at Ludhiana and one male child

was born out of his wedlock. Earlier marriage of the petitioner was

solemnized with Rekha, elder sister of the respondent on 29.04.2007. But

after a few days of the marriage on 17.05.2007, she eloped with her

paramour and till date is untraceable. A DDR in this context was

registered by the father of the respondent with the police. Thereafter, the

marriage of the petitioner was solemnized with the respondent. Soon after

the marriage, the behaviour of the respondent was not cordial with the

petitioner and his family members. On asking, respondent revealed that

she was not ready for this marriage and she was forced to perform this

marriage. Thereafter, respondent started demanding that the petitioner

should live separate from his parents. When petitioner refused to accept

this, she started quarreling with the petitioner and his family members on

petty issues. She used to leave the matrimonial home and stayed at her

parental home for months without any reason. She was also admitted for

pursuing MBA but she failed to clear the examination. On 14.11.2012,

parents of the respondent came and took her and the minor son along

with them. At that time they told that she will return after a few days.

When she did not return, petitioner contacted her but she refused to come

back unless petitioner arranged for a separate residence. When petitioner

refused to do so, as his father has undergone heart bypass surgery and

there is no one to look after his old parents, she threatened the petitioner

that he and his family will be implicated in false cases as they are not

accepting her demands. Thereafter, several panchayats were organized

but respondent and her family members never agreed to return the

respondent and the minor child. Petitioner has come to know that the

respondent has admitted the minor child in a school at Kalka. It shows

her intentions of not returning back and resume the cohabitation with the

petitioner. The petitioner has not condoned her right of conjugal right.

The petitioner made his all efforts to ask the respondent to join his

company but the respondent flatly refused each time. The respondent is

reluctant in joining the company of the petitioner at Ludhiana. The

present petition has not been presented in collusion with the respondent.

There has not been any unnecessary or improper delay in filing this

petition. There is no other legal ground why the relief sought for should

not be granted and that there have not been any previous proceedings

with regard to marriage between the parties.

3. Notice of the petition was issued to the respondent.

Despite service through publication in the newspaper 'Daily Aashiana'

dated 07.03.2014, the respondent failed to appear before the court. As

such, she was proceeded against exparte vide order dated 13.03.2014.

Thereafter, the case was fixed for exparte evidence of the petitioner.

4. In exparte evidence, petitioner has examined himself as PW-1 and has tendered into evidence his affidavit Ex.PA. The petitioner

has reiterated, on oath, the entire version of his plaint. He has also

examined Sh.Ram Paul Verma as PW-2, Sh.Raj Kumar as PW-3,

Sh.Amritpal Singh as PW-4, Sh.Ashwani Kumar as PW-5 and Sh.Rajesh

Kumar as PW-6 who tendered into evidence their affidavits Ex.PB,

Ex.PC, Ex.PD, Ex.PE and Ex.PF respectively. PW-2 to PW-6 have

corroborated, on oath, the entire version of the petitioner. Thereafter,

petitioner closed the evidence vide his separately recorded statement

dated 21.05.2014.

5. I have heard Ld. Counsel for the petitioner and have gone

through the record of the case.

6. Petitioner Jatinder Verma appeared as PW1 and tendered

into evidence his affidavit Ex.PA. I have gone through this affidavit. All

the facts as mentioned in the petition are reiterated in this affidavit.

7. PW-2 to PW-6 have also corroborated the facts as mentioned

in the petition. The evidence led by petitioner goes unrebutted as

respondent close not to appear and to be proceeded against exparte.

8. The petitioner as well as all the witnesses examined by the

petitioner in exparte evidence have stated that the marriage between the

parties to the petition was solemnized on 29.07.2007 at Chandigarh as per

Sikh Rights and Ceremonies. After the marriage, the parties to the

petition lived and cohabited together as husband and wife at Ludhiana

and one male child was born out of this wedlock. Further stated that

earlier marriage of the petitioner was solemnized with Rekha, elder sister

of the respondent on 29.04.2007. But after a few days of the marriage, on

17.05.2007, she eloped with her paramour and till date is untraceable. A DDR in this context was registered by the father of the respondent with

the police. Thereafter, the marriage of the petitioner was solemnized with

the respondent. However, neither the petitioner nor any of the witnesses

have stated as to whether the petitioner had obtained divorce from his

earlier wife i.e. Rekha who eloped with her paramour or that the marriage

of the petitioner with Rekha was dissolved by a decree of divorce by the

court of law. During the subsistence of marriage of the petitioner with

Rekha, the marriage of the petitioner with the respondent is not a valid

marriage as per Hindu Marriage Act, 1955 because as per Hindu

Marriage Act 1955 a marriage performed by any Hindu during the

subsistence of his/her earlier marriage is not valid marriage. Since the

alleged marriage of the petitioner with the respondent is not valid

marriage, the provisions of Section 9 of Hindu Marriage Act 1955 i.e.

restitution of the conjugal right are not applicable to the present petition

and as such the decree under Section 9 of Hindu Marriage Act 1955 for

the Restitution of the Conjugal Right cannot be passed.

9. In view of what has been discussed above, the petition under

Section 9 of Hindu Marriage Act 1955 for the Restitution of the Conjugal

Right is dismissed. No order as to costs. Decree sheet be drawn. File be

consigned to the record room after paging, indexing and completing the

same.

Announced:15.07.2014

Now my question is where we stand about 1st marriage’s divorce as it’s been over 7 years and that lady I think has a kid with the guy who she ran away, how long it can take to get divorce if we do not know where she live.

2nd Question where we stand with regard to this second wife, if we were DV when why she is reporting now not at that time and can she send jail to my family members to DV/Dowry case etc.

 

Thanks for your help.

 

 

 

 



Learning

 8 Replies

victim (master)     03 January 2015

You have a good case in hand, as divorce (from 1st wife) case is already filed contest that case sooner or later divorce will be granted.

 

now since second wife is sister of first wife and more so second wife is not legally wedded wife you are free from criminal cases like 498A. second wife has no right on your properties and earnings under any of the sections of any act except domestic voilance act and in DV act burden of proof of any domestic voilance lies on her. Now since child is also involved some interim maintenance may be awarded which is not a big deal, since he is your own child. contest the DV case and once the case is over you are free from second wife.  

T. Kalaiselvan, Advocate (Advocate)     04 January 2015

apply for divorce with the first wife, since she will not be there in the last known address, an exparte decree of divorce is possible.  As the second marriage is void, let the DV case go on, you may challenge the same on merits.

N R Dash.. (Advocate)     04 January 2015

The judgement is absolute as per law. Take ex-parte divorce from the 1st marriage & then challenge the DV on merrit, however, take the help of a counselor. There are many technical factors involved those can not be elaborated in this forum. Your counselor can better explain the things to you.

rajverma   12 April 2015

Hello everyone, 

 

Really appreciate all Ur help and answers. I am so sorry for late reply as a lot of things going on. 

 

Nothing happened at women's cell as they literally forced my family to take her to our house which we did for the sake of child but after staying there for 2 weeks then she went back to her parents again and women cell again, which I guess have forwarded file to court as this did not resolved at their place. She was asking for money n Gold jewellery, but as it was not at home so she did not get jewellery but got money but not a lot, then she started switching on CCTV and go out from house for hours and even on the day she left our home she turned off camera and not even told my elderly mother. We only found out when a police officer rang my brother saying ur wife is going back to her parents house as she does not want to live here. 

Before she left our house she rang one of the women cell ASI and he advised her to go to local police station and inform them that she does not want to live at our home and then ho to her parents house, I guess that was a sincere advise, otherwise her father could have put another case against us saying we done anything to her daughter and she's missing. Thank god for that. 

Now my brothers wife have file a case in court MNT125, 

 

 

I have no idea what is this about and what she is trying to claim. 

 

 

 

 

 

Many thanks in advance. God bless all and hope no one have to deal with this kind of person in life. 

 

 
ACTS
Under Act(s) Maintenance and Welfare of Parents and Senior Citizens Act
Under Section(s) 125
Subject  
 
LOWER COURT INFORMATION
Court No & Name ---
Case No & Year ---
Case Decision Date ---
 
FIR DETAILS
Police Station  
FIR No. 0 Year 0


History Of Case Hearing
Regn. No. Judge  Bussiness on Date Hearing Date Purpose of Hearing
9/2015 Sub Divisional Judicial Magistrate   30-05-2015 Appereance

T. Kalaiselvan, Advocate (Advocate)     12 April 2015

If she has filed a maintenance case u/s 125 cr.p.c., your brother has to challenge the same on the merits in his side.  This is no doubt criminal case but related to matrimonial issues.

rajverma   12 April 2015

Thanks for quick reply sir, what does maintenance case, does it mean she is asking for child maintenance money n other money like if my brother own any property or business etc, 

 

I am really sorry to ask u dumb questions.

rajverma   30 May 2015

From my brothers case Ecourts.gov.in results from last hearing Contested--DISMISSED IN DEFAULT U/O 9 RULE 3 OF CPC Does anyone know what does it mean by according to HMA Many thanks Raj

T. Kalaiselvan, Advocate (Advocate)     30 May 2015

The case filed by the petitioner has not been followed up by the petitioner, hence the court has dismissed the same for default for not prosecuting the same. Consult your lawyer on further issues. 


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