High court divorce process

when you file 1st motion in Oct then you get date for 2nd motion in April 2013.

there is no process to file in high court.

you will get divorce in lower court only.

 

Hi Richa,

Infact in MCD under section 9 of HMA, the court will fix first date of hearing after  6 months, from the date filing of the petition, only on the gound that still there is a chance reunion of the couples.

But if you prove that you both are already leaving separately for more than 6 months, the court will fix nearest date or prepone the hearing date in your case.

srishaila,advocate, bangalore, 9741425514,sdharani120@gmail.com

not able to make out where u live. Every state high court has its own perceptions though law is same. srishaila is right as far as karnataka is concerned.

yes you need to live seperately at least six months but make application that you both live separately still more period if both can sign the paper .

court today has got too many divore applications unlike in the past when it was very rare for very genuine reasons.today for any reason divorce is common, as the idea of institution of marriage losts ts credence. Courts know that so they try toenure patch up. 

that idea is nothing wrong, as far as i believe. i also tout patching up.

my view is patch up live together is the best way of life. but you are all adamant on thae divorce, u need to wait till court clears as there is a great backlog of ever so many very important cases,other than divorces. so judges tome cannot be exclusively given just for divorces.

yes family courts are exclusively sit for the purpose, my view you both represent your own cases instead of lawyers promoting divorces litigation.

divorces need to be most minimum possible else there is no meaning in marriages. i advice before marriage be live in if it works then go for marriages.. regards. dr g balakrishnan.

 

cool down ... cool down ...

i have filed divorce case in bellary district court, and she filed maintance case in family court dharwad district court , i appeared and submitted prove too as she working ..but she is absent on that day .. can i appeal to the court to get the prove from the college why means RTI cant work there, or shall i go perrsonal and appeal to principal to give the copy of attendance please suggests me wht to do

Originally posted by : Richa
	Hi, I have files divorce in Lucknow court in october 2012, it is a mutual divorce and we have got the date in june 2013. Now I would like to file it in high court, so I can settle it before june. Can someone help in understanding the process while filing the petition in high court. And how can we fast the process. Is there something called "favorable bench time" for filing the petition. Request you to please help on it. Thanks so much.

Order is followed, first lower court, something comes out unfavorable, then go high court.

Court wont see how desperate one is in obtaining divorce, court teaches you to be patient.

DEar Querist

MCD can be filed u/s 13 B of HMA and the proceeding should be start from lower court as per section 21 of HMA 

 

21. Application of Act 5 of 1908.-

 

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908(5 of 1908).

 

Comments

 

Decree under Hindu Marriage Act and decree under Code of Civil Procedure are not same

 

Decree under the Hindu Marriage Act and decree under Code of Civil Procedure are not of the same nature and character. A decree passed under section 10 of the Hindu Marriage Act may be rescinded by the Trial Court itself “on the application by the petition of either party on being satisfied of the truth of the statement made in petition if it consider just and reasonable to do so”. But decree passed under Code of Civil Procedure can in no circumstances be rescinded, altered, cancelled, or modified by the Trial Court; such decree may be rescinded or changed only by the Higher Court; Baby Deb v. Ajit Deb , AIR 2008 Gau 49.

 

Dear Srishaila, We have already shown that we are leaving separate from a year. Now there is no chance of reunion at all. The second motion is in July but cant trust him, he can withdrawn the case too (even it's MCD) For me July is too long, and I have checked that if we file a petition in high court then we might get a date before it. Therefore the questions are same: 1. What is the process while filing the petition in high court 2. Is there something called "favorable bench time" for filing the petition. Request you to please help. Thanks.

Hi,

Please someone can get back to me on the questions.

Really need your help.

Thanks a lot.

you have to approach the same family court and submit the same, and also convince the court, that you have already separated from your husband , one year back, so in exceptional cases , the cort may prepone your case.

MCD can not happen before 6 months without reasonable grounds & its DIFFICULT to create justificable grounds. so just wait till 2nd motion.

 

SUPREME COURT'S VIEW ON 6 MONTHS WAITING PERIOD

 

A question which has often arisen for consideration before theSupreme Court is whether the Supreme Court can, in exercise of its inherent power under Article 142 of theConstitution of India, waive the six-month period as mandated by Section 13B (2). This question has consistently been answered, either impliedly or expressly, in the affirmative, to the relief of many who are eager for an immediate divorce. In numerous cases, mostly arising out of a transfer petition (filed by the wife or husband for transfer of cases from one state to another), theSupreme Court has often successfully persuaded parties to settle their matrimonial disputes and as per the terms of settlement, the parties move an application before the Supreme Court for divorce by mutual consent. The Supreme Court has thereafter immediately allowed such applications, granting the parties divorce in exercise of its power under Article 142 and hence impliedly waiving the six-month period between the first and the second motion.

 

In 2002, the Supreme Court in Anjana Kishore v. Puneet Kishore,(2002) 10 SCC 194, expressly dealt with this question of waiver and then permitted the family court to consider dispensing with the six-month waiting period. In 2009, the Court once again (inAnil Kumar Jain v. Maya Jain, (2009) 10 SCC 415) took note of a number of cases and finally held that in exercise of its extraordinary powers under Article 142, it can grant relief to the parties without even waiting for the statutory period of six months. In Anil Kumar Jain however, the Court also cautioned that it is only the Supreme Court that can grant such a waiver and neither the civil courts nor even the High Courts can pass orders before the period prescribed in Section 13B (2) has expired.

 

The consistent view taken by the Supreme Court has however recently been disturbed by two judgments of the Court, both byJustice B.S. Chauhan, who has raised some serious doubts regarding the validity of such waiver (See for instance, Manish Goel v. Rohini Goel, AIR 2010 SC 1099). After examining the scope of Section 13B, Justice Chauhan has held that the statutory period of six months for filing the second petition under Section 13B (2)has been prescribed for providing an opportunity to parties to reconcile and withdraw their petition for dissolution of marriage and that under Article 142, the Court cannot altogether ignore the substantive provisions of the statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in a statute. After having referred to various judgments,Justice Chauhan held that the power under Article 142 is not to be exercised in a case where there is no basis in law that can form an edifice for building up a structure.

 

While it is true that the Court ‘generally’ does not pass an order either in contravention of or ignoring the statutory provisions, theSupreme Court has consistently held that constitutional powers cannot in any way, be controlled by any statutory provisions. It is a settled principle that the inherent power of the Court underArticle 142 is extremely wide and such powers are undefined and uncatalogued so that it remains elastic enough to be moulded to suit a given situation and if the situation so warrants, then there is no reason why the Court should not exercise its power to waive the six-month period. Moreover, an examination of all the cases in which the Supreme Court has waived the six-month period will go to show that such a power has mostly been exercised in transfer petitions where the parties have reached a mutual settlement during the pendency of the cases. Therefore, the inconsistent stand taken by Justice Chauhan, and that too, without making any exceptions, may not have been necessary as the six-month wait may be unnecessary in some circumstances.

 

Recognising the fact that the judgments of Justice Chauhan may cause some confusion, the Supreme Court recently in Neeti Malviyav. Rakesh Malviya, (2010) 6 SCC 413, referred the question of waiver to a larger bench. However, parties before the Supreme Court who by virtue of a settlement are seeking an immediate divorce need not worry too much as the other benches of theSupreme Court, in spite of the judgments of Justice Chauhan and in spite of the pending reference to the larger bench, have continued to exercise their powers under Article 142 to grant divorce in view of the settlement, thereby waiving the six-month period under Section 13B (1) by implication.