Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Sidharth   17 November 2016

Maintainability of divorce case ?

Dear All,

 

I was facing case of 498a and DV act.  Some months back my wife filed the case of divorce ( on the same grounds mentioned in DV Act case)

 

But this month court aquitted me from the DV Act.

 

Can i challange the maintainability of divorce petition as wife / petitioner has already failed to prove her allegations of cruelty.

 

Present stage of divorce case:

Court is hearing the application of section 24 HMA

 

 

 



Learning

 16 Replies

Arjun   17 November 2016

Hi Siddarth,

As all the cases 498A, DVC and Divorce filed on the same allegations and ground, i feel you can very well challenge her Petition.

Let us see the experts suggestions also.

Thanks,

Arjun

 

Consigliere   18 November 2016

Babooji theek boley :)

 

The Divorce case will continue largely unaffected by the results of DV or 498A. At MOST, dismissal of/discharge from 498A/DV may be useful in evidence in Divorce proceedings, but as such, Divorce is independent of these actions. 

sai narayana   18 November 2016

In counter to 24HMA plead that she herself done the cruelty upon you by filing false/disproved DV case, so she is disentitled for any sort of relief. (Attach judgment copies)

Sachin (N.A)     18 November 2016

Not agreed with sai narayana

 

Because Section 24 HMA is  "Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding."

 

 

 

sai narayana   18 November 2016

Originally posted by : Sachin
Not agreed with sai narayana

 

Because Section 24 HMA is  "Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding."

 

 

 

I too aware of this, but with this pleading at least we can bring to the notice of judge about false dv case, we may get some sympathy while fixing the quantum of maintenance.

Sidharth   18 November 2016

Dear friends,

My only purpose is to linger on the case. Suggest accordingly

sai narayana   18 November 2016

Write in counter, disproved criminal cases itself is a cruelty, and one can not take advantage of own cruelty under S23(1) of Hindu Marriage Act,1955.

1 Like

Consigliere   18 November 2016

If you can prove false case, you might be able to use it as a mental cruelty by your spouse. Do note however, that false case does not mean the same as an "unproved" case. Technically, prosecution may fail on account of lack of evidence. But failure to prove a case does not, by itself, mean a false case. On the other hand, if you can prove a false case, you can resort to IPC S.182, 192, 211 (~perjury) and S.500 (defamation). These will not "linger" anythimg so to speak (because other relatd proceedings will not await the outcome of such proceedings), but if I understand you correctly, these will make your spouse make a few free visits to Court. Having said that, an Application under S.195 r/w 340 Cr.P.C.  allegimg false evidence may be able to linger proceedings for a while insofar as High Courts have held that such Applications must be diposed off first, prior to recording evidence.

Sidharth   18 November 2016

Dear sai narayana,

 

Can you please explain more about sec 23(1) of HMA?

What relief should i pray in this section?

Will it be ok if i say Under section 23A of Hindu Marriage Act

To dismiss her Divorce Petition because Cruelty and Desertion is on her own part.

 

 

sai narayana   18 November 2016

Originally posted by : Sidharth
Dear sai narayana,

 

Can you please explain more about sec 23(1) of HMA?

What relief should i pray in this section?

Will it be ok if i say Under section 23A of Hindu Marriage Act

To dismiss her Divorce Petition because Cruelty and Desertion is on her own part.

 

 

Yes, what you said is right. The false or disproved criminal cases are mental cruelty, she is trying to take advantange of her own cruelty so the petition is liable to be dismissed with costs to the petitioner.

The S23A is counter-claim, it's like a separate petition filed by the respondent who wish to seek opposite of petitioner's relief. Suppose if the petitioner seeks divorce, respondent may file counter claim petition seeking RCR (or) vice-versa.

So the relevant provision in your case is S23(1)(a) not S23A. 

The S23(1)(a)

https://indiankanoon.org/doc/1447949/

The S23A

https://indiankanoon.org/doc/1831510/

1 Like

Sidharth   18 November 2016

Please expalin the diffrence between 

Section 23(1) in The Hindu Marriage Act, 1955
(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—
(a) any of the grounds for granting relief exists and the petitioner 47 [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief
 
 
And 
 
Section 23A in The Hindu Marriage Act, 1955
 
Relief for respondent in divorce and other proceedings. —In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

Consigliere   18 November 2016

!!!

Cruelty is no defence whatsoever to oppose divorce petiton. It may indeed sound twisted, but the  spouse may institute proceedings seeking divorce on the ground lf mental cruelty. This spouse HAS to prove mental cruelty. If she/he fails to prove mental cruelty, she/he fails to prover her/his case. That is not the same as saying that the defending spouse can set up a defense of mental cruelty to oppose the divorce proceedings. 

 

S.23A HMA enables such relief under a counter-claim which is maintainable under Hindu Marriage Act in the first place. A short question. Does HMA provide any relief for false case? The short answer: No.

sai narayana   18 November 2016

Originally posted by : Sidharth
Please expalin the diffrence between 

Section 23(1) in The Hindu Marriage Act, 1955

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—
(a) any of the grounds for granting relief exists and the petitioner 47 [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief

 

 

And 

 


Section 23A in The Hindu Marriage Act, 1955

 

Relief for respondent in divorce and other proceedings. —In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

 

S23A Counter-claim means; The name "Counter-claim" itself indicates claiming counter(opposite) to what the petitioner claimed. That means Respondent filing a separate petition to seek the relief opposite to what the petitioner asked in his/her petition. In your case since the wife, the petitioner filed divorce, the Respondent,you can file RCR as counter-claim petition.

 

Where as S23(1)(a): Is a statutory condition imposed on every HMOP petition, divorce or RCR or whatever it may be, the petitioner can't take advantage of his/her own fault (or) cruelty. In your case, the petitioner, your wife herself done cruelty to you by filing false criminal cases previously. Since she herself done the cruelty, she can not put allegation of cruelty against you in her divorce petition.

1 Like

Sidharth   18 November 2016

 

 

I think Mr sai narayana has a point because DV act deals with both mental and physical cruelty and when she is not able to prove that in trial court means she herself has done cruelty on husband how can she ask for relief under HMA on same ground in the court of family judge


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