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honest jai12 (NA)     07 July 2010

Divorce from partner in permanent coma

Hi, My partner met with an accident and is in a coma like state since last 3 years after suffering grave head injuries and is expected to be in the same condition for the rest of her life. Even with a miracle she cannot be expected to recover even reasonably to understand simple things like marriage or children or take care of her own day to day functioning. I have a son who is 4 years old. Now family is insisting me to get remarried to get on with my and childs life.  My partners parents are ready to cooperate in this matter and  have asked me to pay a monthly compensation which I have agrees. Could you please help me with following:

should i go for contested petition (on grounds of mental incapacity) or i go for mutual consent divorse since my partners father is agreeing and ready t be her guardian? or i put a petition for divorse on ground of mental disorder and subsequently ask my father-in-law to put an affedavit?

procedure that I need to follow getting divorse?,

how much time should it take for my divorse?

Many thanks..



Learning

 40 Replies

G. ARAVINTHAN (Legal Consultant / Solicitor)     07 July 2010

obtain certificate from doctor and other phsycologists

Arup (UNEMPLOYED)     09 July 2010

IT IS NOT SPECIFIED, WITHIN THE LAW;

BUT AN INTERESTING CASE

- SHOULD BE JUDICIALLY DECIDED.

honest jai12 (NA)     10 July 2010

Thanks for the replies...Can't we consider this as a mental incapacity ? This could be a ground...are there too many hassels in proving mental incapacity?

Arup (UNEMPLOYED)     11 July 2010

mental incapacity after marriage, is not a fit ground for divorce and not a cause for making the marriage voidable, - in the present act under the hindu marriage act.

however strong logic is there and court may be approached.


(Guest)

As Arup ji said and I too agree this would be very interesting scenario. Some thoughts / que. / Suggestions from my side;

1. Where the marriage took place does that District has Family Court instituted under Family Court Act, 1984 ?


2. If yes, then a standalone "mental incapacity" ground based Divorce Suit may be filled with voluntary willingness statement on maint / alimony and let the Family Court decide and or dismiss the same.


3. Now, if Family Court dismisses it then you go to HC and let HC also dismiss the same.


4. Finally you reach Hon'ble SC there it will be decided under Art. 142 by POA of FIL / MIL as wife in coma so she has to be represented by someone as guardian.


5. Que. now is do you have that much patience, time clubbed with money to get a "Decree Sheet" prepared by Registry signature of Hon'ble SC and also mind it this will be a "precedent case" {say on the lines of euthanasia mercy situation] so think deep what you could do then act as in my understanding of your situation applying basic matrimonial logics it is a doable scenario. All you will need is a passionate Family Court Ld. Advocate who understands euthanasia and applies its logic to living but brain dead spouse condition and all that is asked is second marriage with regular medical maintenance payment to first wife upkeep but minor child welfare necessiated me to get married second time will be pleading logics most probably!


6. Last suggestion which is not legal but being made if FIL and MIL agreeing to your empathy and also agreement on maint / alimony are there between parties then take a Affidavit from them with two witness and pay the monthly maint. by cheque regularly and carry forward with second marriage. If first wife with a miracle comes back to normal then the affidavits and per month cheques are there and least to least what will happen then, your second marriage will be declared void and your first wife will claim alimony that is all nothing more bze FIL / MIL affidavits without coercion / duress / force with witness there and you have been a good husband by looking after first wife's medical needs all these times but for "welfare of child" you were made to marry second time which should also be the wording of affidavit.

See if your conscious is clear and no deceit involved then even Hon'ble SC is not that strong in such mercy cases is my opinion. Rest is your choice.

Rgds.

1 Like

honest jai12 (NA)     12 July 2010

Thanks so much for the suggestion. So we follow the following steps:

- Petition the court on mental incapacity grounds

- Appoint my wife's father as guardian and he will be present in the court and give affidavit to take care of her daughter.

Should this suffice?

Also, already we have agreed on an amount of monthly maintenance with my father-in-law. Would the court uphold this agreement of monthly maintenance or decide on the amount on their own?

Thanks again for the help.

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     13 July 2010

Dear Mr.Kavi,

First of all i should say that it is your duty to take care of your ill wife coz after marriage it is your duty to take care of your partner.

Even then if you dont care then you can file contested divorce and your local lawyer will guide you every step.

Regarding amount, if it is settled between both of you and your father in law then may be court will not make any change but it depends upon court.

So you may proceed but plz think again, your love can change her physical condition but if divorce then she will lose her everything.

Good luck.

honest jai12 (NA)     13 July 2010

Thanks Mr Kamal...

I have made this dcision after a lot of deliberations...My conscience is clear..this step needs to be taken since it is for the betterment of the child....I can imagine that if I was in my wifes place and having a permanent incurable mental disorder, I would have definately wished that my kid and wife dont suffer for the rest of their life...

my wife needs fianancial support which will be provided...she will never understand that she was divorsed...

Devesh A. Bhatia (Advocate)     14 July 2010

Mr. Kavi,

You should file divorce petition U/S 13 1 (iii) for continued mental incapacity along with certificate from a general physician and another certificate from a government certified neuro surgeon. 

1 Like

(Guest)

@ kavi

 

u feel your child needs a mother.so u will remarry

 

u need a partner,u will find one...

 

wot about ur wife?doesn't she need a husband's and child's care?....suppose her parents die in old age,who will care for her?suppose ur own sister was in same situation....wud u have liked her husband getting remarried and also taking away her child from her.suppose some miracle happens and she recovers.only to find her hubby and child gone.how will she feel?is marriage only for having s*x and being an ayah to the child?isn't it her hubby's responsibility to care for her in sickness also...............o'wise she was batter off as unmarried!

u casually said if u were suffering from coma u wud have "wished to see her married..........are u sure it wud not have upset u?if u were in coma,her parents approached ur parents to give her a divorce so that she can remarry,they wud have been labelled as selfish inlaws who have not taught indian values to their daiugher...same applies to u too!

 

remember law of karma...what goes around comes around.......and these laws are straonger than any man made laws like legal laws of divorce,remarraige etc...

 

 

 

 

 

 

 

 

Arup (UNEMPLOYED)     19 July 2010

YES MR KAVI, MR DEVESH, ABSOLUTELY RIGHT. I AM SORRY, I WAS WRONG.

HMA, SEC 13 (1)(iii)  Has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live      with the respondent.

Explanation.-In this clause,-

(a) The expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment;

THANKS MR DEVESH.

Arup (UNEMPLOYED)     19 July 2010

MS. AISHWARYA,

VERY TACTFULLY YOU ADVOCATING IN FAVOUR OF MRS KAVI - WHO IS IN KOMA.

QUOTE

suppose her parents die in old age,who will care for her?

UNQUOTE

THEREFORE MR KAVI SHOULD CARRY HER LIFE LONG. BUT NEVER YOU THINK THAT IF KAVI DIED WHO WILL TAKE CARE OF MRS  KAVI?

FOR THAT PURPOSE SHOULD NOT MR KAVI MARRY AGAIN?

Arup (UNEMPLOYED)     19 July 2010

MS. AISHWARYA,

QUOTE

remember law of karma...what goes around comes around.......and these laws are straonger than any man made laws like legal laws of divorce,remarraige etc...

UNQUOTE

YOU ADVISED MR KAVI TO BEAR HIS UNTOULARABLE PAIN IN THE NAME OF KARMA, ACCORDING TO YOU - THE LAW OF KARMA.

IS IT NOT APPLICABLE TO YOU ALSO.

SHOULD IT NOT ADVISABLE TO YOU ALSO ; - BEAR ALL THESE MATRIMONIAL PAINS ACCORDING TO THE RULE OF KARMA?

YOU MUST UNDERSTAND THAT,-

 MEN DOMINATED WOMEN, PAST THOUSAND YEARS OR MORE IN THE NAME OF RELIGION.

NOW YOU ARE TRYING TO TAKE ADVANTAGE OF THIS RELIGION?

WHICH IS RESPONSIBLE FOR SATIDAHAA.?

THIS RELIGION ONLY.

EVEN TODAY ALSO, IN THE NAME OF RELIGION BURQA AND GHUNGHAT TRING TO TIE UP WOMEN IN THE MENTALITY OF MEDIAVEL ERA.

I DONOT KNOW WHEN IT WILL BE HAPPEN, BUT I STRONGLY BELIEVE THAT, WHEN THE REAL CHHRECTER OF RELIGION WILL BE EXPOSED, WOMEN WILL HATE THE 'SO CALLED' RELIGION.

Arup (UNEMPLOYED)     19 July 2010

PLEASE READ TRYING INSTEAD OF TRING.


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