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purnima (Business)     21 April 2009

Maintenance & Divorce

In case a person is paying maintenance expenses, as per Court Order, to wife, since both of them are staying separately since two years, can the husband file divorce petition in the court? please state the tentative duration of the said proceedings. The couple is staying in Maharashtra.


 8 Replies


I suppose this Maint Order is under S. 125 CrPC and may be an interim order? or under the same Act is it a final order? Yes, either party can approach as per HMA for Divorce. it is difficult to say about the duration witout knowing about the religion and under which act the Maint. order is passed. Please alloborate looking at the Order Sheet.

G. ARAVINTHAN (Legal Consultant / Solicitor)     22 April 2009

 More details required madam..


Just staying separately for two years cannot be a ground for divorce for husband.  He has to show that the wife has withdrawn from the society of the husband (from the matrimonial home) without reasonable cause.   This two year period should be continuous one at the time of presenting the divorce petition.

Prabhat Kumar (Advocate)     22 April 2009

Divorce can be obtained only on the grounds availble as per law. The husband can file the divorce petition if staying seperately by the wife falls within the definition of desertion.

ambika.S (advocate)     23 April 2009

The ground for divorce is incompatability amongst the other ground and the Court will consider the ground and allow the dissolution of marriage


Ambikaji,  incompatiability is not a ground for seeking decree of divorce as per the prevailing Act.  There are several voices raising continuously to put incompatiability and irritrivable break-down of marriage in HMA as grounds for divorce.

ambika.S (advocate)     24 April 2009

In order to complete justice between parties and shorten agony of parties engaged in long drawn batter Decree of dissolution of marriage between the parties was passed. The Madras High Court has viewed that it is impossible and impracticable to preserve the marriage and any further effort to keep the marriage alive, would prove to be totally counter-productive and in order to do complete justice and to shorten the agony of the parties engaged in a long-drawn legal battle, the Decree of dissolution is allowed. This has been reported in 1 [2009] DMC 439 [DB] Madras High Court.


This argument has been struck down by the hon'ble Supreme Court in a latest case ( I do not have citation) in Feb./March, 2009, judgment delivered by Justice Mr. Markandey Kanju by saying law making power is vested with the legislature and law declaring power is with the courts and courts should not inject new grounds in the Statute.

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