preety arora (none) 27 April 2010

mutual divorce in case of a compromising marriage

hi all,

i am from a town in uttar pradesh. i was married in 2004 to my masi's son. it was bcoz of both our family situations that we got married. i knew it beforehand that my so called husband is very simple and innocent, i knew that he was an introvert. but after my marriage i realised that he is not just an introvert but also mentally not normal. even my masi and my mausa are not mentally normal. my husband;s dadaji had a registered will which after his death was implemented. based on that i got a 50% share in all his properties. i have been living with my husband in the same house for the past six years but differently. on the first day of my marriage i realised his behaviour was not normal when he was on bed. he made unusual and shocking sounds which terrified me. thereafter it was hardly any time that we came closer to each other. and later after around 3-4 years of my marriage, i came to know that he had some complications mediacally also. we consulted a doctor who sugested a sperm analysis, which again proved that all his sperms were dead and it was not his cup of tea to give birth to kids. from the very first day of our marriage, my husband has not been doing any work, he just keeps at home. i have been taking care of the family property which yields rental and that is the sole means of our livelihood. he has been violent also at times with me. there have been 1-2 instances when i had called police for immediate help bcoz of his violence. now after 6 years of my compromising life, i realise that it is high time for me to take a call and start a new life altogather. now i want to know that what can i do???? he is ready to give divorce to me thru mutual consent only if i take his responsibility to provide him with his monthly expenses thru the rental and take care of other official matters as he doesnt look after anything. i also wish to go ahead with a mutual divorce only. will i be entitled to the property i got thru my husband's dadji's will even after i divorce him??? is there a clause like where he vests me with the responsibility wherein i look after his property and in turn provide him with his monthly living expenses??? and is all that is mentioned in the divorce decree a final binding on both the partners???? is there any chance thru which my husband can challenge the contents of the divorce decree thru mutual consent and demand changes / alterations in the same???

please help

Reply Follow

5 Replies

Guest (Guest) 27 April 2010

Dear Ms. Preety Arora,

Your problem raises the most complicated and interesting question in law. The first reason is that your marriage with your mausi's on is itself null and void under Section 11 of the Hindu Marriage Act as it is contravening Section 5(iv) of the said Act. It means, that you and your mausi's son are within the degrees of prohibited relationship and hence, the marriage is itself void and an application under Section 11 of the Act is allowed to declare the marriage as null and void.

Now, I do not know exactly what his dadaji said in the will. Had he said the property would be given to the wife of his grand child (your husband) or did he clearly mention your name as a beneficiary of his property without mentioning your status as the wife of his grand child. That thing requires clarification. If it is the first case, by nullifying the marriage, you will not be entitled to the property. If it is the second case, then you are entitled to the property after taking the decree of nullity of your marriage.

Now forget about all these things. If you want to resolve your problem, there is a way. You will not say anywhere in any petition that your husband is your mausi's son. You go for mutual consent divorce under Section 13-B. In the petition, you can include the clause that your husband will not interfere with your enjoyment of property and you would provide him maintenance (the terms must be precise, i.e., how much maintenance has to be given etc. (10% increase on every year from the previous year's maintenance) If any ambiguity is there, then your right on property may be challenged in court. Finally, it is also noted that a mentally incacitated person is not entitled to sign any agreement. All these questions would be required for consideration.

Wish you the best.

adv. rajeev ( rajoo ) (practicing advocate) 27 April 2010

Dear Preety,

I do agree with Prabhakar, but what do marriage is already performed eventhough it is prohibited. You go for consent divorce. You both come to the conclusion regarding the prperty and maintenance to your husband and get refer your case to lok adalat their you can file compromise petition accordingly it will be decreed.

preety arora (none) 27 April 2010

thanks a lot...

it was a pleasure going thru ur post... sir, i wud like to tell u that i was mentioned in the will as my grand daughter in law-preety arora. the entire thing was mentioned like this. and sir, mu queries include:-

1. can my hubby gift me his share of the property willingly with the clause that i shall provide him with his monthly expenses and things with a 5,10% annual escalation in it?

2. if yes, then do i have to pay the stamp duty of say 10% for this transfer or gift deed?

3. what is the exact procudure to be followed in this transfer or gift, i mean an MOU or sumthing that forms a part of the divorce decree?

4. can my hubby deviate from this decision or challenge it after the divorce decree is granted?

5. if he is proved to be mentally insane in the court of law then, is my marriage declared as null and void?? and do i still enjoy the rights to the properties given to me by dadaji??? and can he still give me his share of the property with me providing him with his monthly living???

please do spare sum time for my queries... it wud help me a lot..

thanks again...

Guest (Guest) 28 April 2010

challenge, he may challenge by inventing various grounds, such as, forced execution or fraudulent execution of gift deed etc. One cannot help it.

If he is proved to be mentally insane, that will not make your marriage null and void (marriage null and void is different to divorce decree). But your marriage is null and void because he is your mausi's son. (Please forget to delcare your marriage null and void and go for mutual divorce). But if he is proved to be mentally insane, the gift deed he has executed in your favour also will become null and void. (The reason is that the deed executed by mentally insane person is not legally valid) But your rights on properties given by your dadaji would be intact for the reason that they were given to you on your individul capacity.

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com) 28 April 2010

Ms Preety dont try to act smart, all of them dont have any other source of livelihood and they will not be able to survive if you will snatch all his property by hook and crook.

If you realy want to help him then you can help him by any mean.

Your marriage is otherwise void and not a marriage in the eyes of law and you can marry to anybody after getting decree of nullity or divorce under secion 11.