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ASHOK (trainer)     01 December 2013

Is it possible to remarry while court case for void marriag

 Dear Learned Forum Members

I have filed a case U/S 11 of HMA against my void wife for  getting the marriage to be  declared  Null & Void which  is  already pending. My chief examination & cross are over. Written reply  has been submitted from void wife  where she has admitted regarding her previous marriage being dissolved only on notarised stamp paper ( she did not obtain her divorce decree from a competent court).She is a professional/surgeon and engaged in many business activities.

For the last 5 months, my case is stuck on my cross- examination as her advocate  demanded  me  some of my documents on notice  such as  my passport, marriage photo albums, my salary records, my bank details,my d-mat a/c etc  in order to continue with my cross-examination or else he wouldn't.(  I have contested that these are not relevant to the case u/s 11 HMA in the light of issues framed- issues are Whether the marriage to be declared null & void, whether she acted cruelly as an alternate relief u/s 13 A, whether she is entitled to get Rs 50000/ compensation).

      The Judge ordered me to produce the documents if I have them in  my possession  & the court will decide later wether they are relevant or not .And in case if I do not have the documents , then I need to give an affidavit to that effect ).

     The case is stuck now. I do not want to give some documents like passport , bank statements as I apprehend they may file  & fabricate false cases against me like 498 a/DVA/406 etc as they need material  against me and also to discourage this foul practice of vexation and delay to ask me  to produce for more and more documents during the case .

Sec 11 & some SC judgements ( Malhotra & Malhotra ) say that such marriages are void ab initio & non- existent in the eyes of law. so it is not necessary even to get decree of null & void and that one is free to remarry as the marriage is void ab initio( right from inception).

It seems my Declaration for nullity will take a long time. I will appreciate if the forum members can guide me as regards to the following:

1. How to open up the case again and expedite it for fast disposal.?

2.  Can I avail remedy of moving High Court that the documents demanded are irrelevant.?

3. Should I stop the case where it is and take stay orders from High Court, since for me, her admittance  in written reply that she was married &   that her divorce was  done on stamp paper of Rs 100/, is enough for me  as I have discharged the burden of proof. And  that there  is no  desparate need for me to get the decree which they are trying to resist. The marriage with me itself is void by her sheer admittance.?

4.  Can I remarry without  waiting for this decree of nullity ?

 

 



Learning

 8 Replies

Tajobsindia (Senior Partner )     01 December 2013

 

For your que. No. 1 and 2 – The documents asked by her side is for seeking maintenance as the case between S. 9 till S. 13 HMA if one puts then automatically the other side may seek such documents fearing destitution / penury as such sections cases runs for years. Depending upon ld. Court’s workload I feel 5 months elapsed time is still manageable compared to had it been more than a year’s delay your remedy was to approach Hon’ble HC to give lower Court direction to speedy trial.

For your que. No. 3 – Her w/s is not admission Statement under a Sworn Oath vis-à-vis even falling under Indian Evidence Act practice procedures and for the same she has to appear before a Box to give under Sworn Oath such and such statements with which you may seek a Decree out of her Statement. Post Ref. Malhotra enough water has published where now it is necessary as legal encumbrance to seek a clear DECREE in instance challenge scenarios. You need to follow such civil Decree procedure by the book by showing lot more patience. It is not so easy to fabricate your response documents other than seeking huge maintenance claims out of a mullah as is usual practice by such metro wives when caught in fishy waters!


For your que. No. 4 - Refer to reply in post https://www.lawyersclubindia.com/forum/Soliciting-for-a-new-soul-mate-during-separation-period-93132.asp 

rahul (director)     01 December 2013

its is clearly indicates that you filed case and she is opposing your claim,, means it not easy divorce,

she don't wanna loose you as her husband ,, thats why she is fighting the case and reject your claim that marriage is null,,

its like normal divorce case,,

you cant remarry untill court allow your petition,

 

 

T. Kalaiselvan, Advocate (Advocate)     01 December 2013

It is very simple.  You have approached a court of law seeking remedy for nullifying/annulling your marriage, if you think that as per settled law, the marriage is void ab-initio, you should not approached court for remedy.  In court during proceedings, certain documents asked to be produced by the counsel, a decision to bar it will depend upon the presiding officer of the court, if he accepts the request made by defence counsel, you may have to produce it or in your counter state that you do not possess them hence unable to produce them.  Once it has not been decided by the court whether to annul the marriage or not, how can you go for a re-marriage with some one, you are also doing the same mistake as your wife did. Better think twice before doing anything of this sort.

ASHOK (trainer)     01 December 2013

Dear Tajobsindia

Sorry  that I did not mention in my post that she is a doctor/surgeon and earning on her own and engaged in many business activities  such as share trading, investor, Insurance agent etc.

I am extremely thankful to your guidance. I have been highly impressed with your all postings/replies/guidance and have been reading your contents with great admiration for the past two years . I never miss your counsel here.

 

Shantanu Wavhal (Worker)     01 December 2013

her advocate  demanded  me  some of my documents on notice  such as  my passport, marriage photo albums, my salary records, my bank details,my d-mat a/c etc  in order to continue with my cross-examination or else he wouldn't

a witness can not be forced to file documents in civil case.

 

you should have got additional issue framed as to :

whether the resp. wife has proven that her first marriage is dissolved as per any custom ?

this is the MOOT POINT in your case

 

The Judge ordered me to produce the documents if I have them in  my possession  & the court will decide later wether they are relevant or not

court can not order so. if ordered so, go to HC & also file prayer u/s 21B for speedy trial & making the matter time bound.

 

when the validity of marriage is on stake, & the issue is contentious, then the court proceeds on a presumption that the marriage is VALD.


why want to remarry hurriedly ? first get decree and make it final.

Shantanu Wavhal (Worker)     01 December 2013

use subramani vs chandralekha : SC ruling

ASHOK (trainer)     02 December 2013

Thanks Amit for your valuable guidance always.

Shantanu Wavhal (Worker)     02 December 2013

if u need more rulings, give me ur email. / pm me


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