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Rajinder (Asstt.Executive Engineer)     26 July 2011

Divorce by Lok Adalat

Respected Senior Lawers,

My humble request from the senior lawyers is to please advice me and the prospectus of my case pending before the Hon`ble supreme court of India:

 

> I got married in Feb 1995,out of the wedlock two children a girl and a boy were born.I am working as Sr.Engineer in Govt deptt.Due to unavoidable circumstances marriage could not last despite my best efforts.She is working in a govt deptt. as a teacher.I filed a petition U/S 13 HM act in Matrimonial court for divorce after her final desertion from the matrimonial home, leaving behind daughter age 6.5 years and son age 3.5 years with me and my ailing aged mother in 4/2002.During the pendency of petition in Matrimonial court u/s 13 filed by me in 6/2002(she didn`t file objections).after the reconciliation efforts failed,she approached me in January 2004 ,and proposed for moving a joint petition u/s 15 HM act for mutual consent with some of her conditions viz.alimony,property and custody of the children.On this a lawyer was consulted of her choice and a joint petition submitted in the court of distt.judge matrimonial ,who after examining both the petitioners,recorded statements in the court.Wife wanted the distt court to refer the case to Lok Adalat for immediate settlement as she wanted money/alimony and property.On the joint request of both ,the hon`ble judge after recording the statements on 21-1-2004 ,referred the case to Lok adalat,The case was listed on 27-1-2004 befeore the Lok Adalat comprising of the three judges of the rank of Principal and Session Judge and two other distt judges.

>

> Statements of both the parties recorded in the Lok Adalat,wife preferred alimony of Rs.4.00 lacs,share in my house,Did not prefer the custody of two minor children.Alimony was paid by me in cash before the court.

>

> Order was passed by the court and decree of divorce by mutual consent awarded.children to remain under care and custody of father only ordered by the court as mother had refused custody.

>

> After the settlement ,taking alimony,share,etc.having an after thought plan after 6-7 months filed a petition in Hon`ble High court against the Lok adalat decision.(taking one of the plea of six months waiting period),whereas she herself had requested the matrimonial court to refer the matter to LOK ADALAT for speedy disposal (statements recorded in the court).

>

> The writ/appeal was admitted in the High court and the decree awarded by the Lok adalat stayed on 8th.Oct 2004.And again the sinle judge after hearing the case in Oct 2005,passed the judgement after one year i.e in on 30th Oct 2006,and allowed the appeal/writ and refered back the matter to matrimonial court.

   Agrieved by the decision of the Sinle Judge of Hon`ble High Court,filed an appeal before te division bench f Hon`ble High court in Nov.2006. Division bench of Hon`ble High Court deliverd its judgement in my favour, thus dissmissing the writ petition and held that

     "It was contended that the public policy of giving an opportunity to rethink, as contained in sub-section 2 of Section 15 of the Jammu and Kashmir Hindu Marriage Act, 1980, would be defeated if the decree passed by Lok Adalat is not interfered with. It is true that sub25 section 2 of Section 15 of the Act contains a public policy hereby and under it grants time of at least six months to the parties to rethink the consent given by  them for dissolution of their marriage, but a person,who did not wait for the time given for such rethinking, cannot be permitted to turn around and contend that he should be permitted to rethink after having had concluded the matter at his/her own volition.

      It was contended that the said decree was obtained by fraud, coercion and intimidation. There was no scope to prove the same in a writ petition. For that, it was obligatory on the part of the petitioner respondent to approach Lok Adalat”.

  “ For the reasons as above, we set aside the judgment and order under appeal and dismiss the writ petition."

> After this my ex-wife filed SLP in the Hon`ble Supreme court. and the case has been listed for more than 8 times and next date has been fixed for Jan 2012.

> Kindly let me know the prospectus of my case

> As:-

> i. we are staying separately for the last about 10 years.

>

> ii. Both the children are with me,as am the sole guardian as directed by the court.They are with me since 4/2002 and never been to mother.produced in the court before division bench and they refused to go with mother. How can i get justice plz advise soon.

>

> iii.I have been suffering badly on this account, as our case is not being taken seriously by the Lawyers of both the sides as the case is pending in the Supreme court for the last more than two yeasr.

> The worst sufferers are the children in our case.Their mother is also not serious about their future,rather she have been filling ill feelings in the minds of kids as and when she meets them in their respective boarding schools.she have creating scenes/drama in the schools,and forcibly tries to meet n snatch the children in front of all of their school mates,teachers and staff, resulting the kids are embarrassed, feel insulted and disturbed thus adversaly affecting their studies/future .

 

 

 

 

 

 

 

 

 

 

 

     I have a doubt which I want to clear in respect of 6 months waiting period mandantory as ruled by the Hon`ble supreme court. Does this rule also applies in my case when the divorce has been granted by the Lok Adalat . that too on the personal request of the opposite party. The case u/s 13 HM act and u/s 7 wards and Guarduian act were pending for the last two years in the matrimonial court from where the the mutual petition u/s 15 was got referred to Lok adalat. The party after passing of the decree and attaining the finality approaches the matrimonial court after one month and presents her application for withdrawl of petition filed by her u/s 7 on the grounds that they (both of us) have been divorced by the lok adalat and the custody of the children shall remain with the father.And in the circumstances the case filed by her u/s 7 be withdrawn on her request.

Please advise soon.to what to do next/



 4 Replies

Avnish Kaur (Consultant)     26 July 2011

yes 6 months waiting is mandatory and lok adalats are not allowed to settle cases except sec 125 .

but taking all facts of your case , you are in a good position, hire a very expert lawyer and may also seek divorce under irretrievable breakdown of marriage whicH can be granted only by SC (VERY FIT CASE FOR IRBM).

THANKACHAN V P (Advocate & Notary)     27 July 2011

It is very remote chance to turn against you.SC may not interefere with the present position.

Rajinder (Asstt.Executive Engineer)     27 July 2011

Thankyou very much Consultant Avnish Kaur and Advocate Thankachan VP for their valuable suggestions. Madam Kaur it was very difficult in selecting the lawyer for pleading the case in the supremecourt,as the most of the senior advocates don`t have the time to go through the case file even. Would u be kind enough to tell me about address/particulars of the expert advocates who will seriously take my case.

Regards:

Rajinder K sharma   01 December 2016

Supremecourt vide its order dated 12th Jan 2016, reversed the order of the High Court and and petition filed by me u/s 13 HMA ,ordered restored in the ADM court..My divorce petition filed in the year 2002 has been restored and SC has ordered for disposal of the case within one year..This order of the supremecourt has upset me a lot. Review petition filed in the supreme court has also been rejected..

Please advise me the chances of filing curative petition in the supremecourt as the supremecourt in recent judgements has waived off the six months waiting periods in other cases after disposal of my case in the supremecourt..

 


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