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whatnot   23 January 2017

Need a forethought

Both parties are Hindu.

A case is filed by Husband for RCR (after 2 years of separation)with intriem visitation right request.

Respodent files counter claim to RCR and prays for a Divorce without mentioning any section.

Also files objection to visitation rights.

Counter objection from husband is due. Husband now wishes to change RCR to Divorce sec13 (1) (ia) based on false allegation in respondent counter claim and has chosen not to use desertion for divorce.

 

The question to  experts is,

What happens next? It would seem both parties filing divorce (but not mutal) and contesting.

 

How will judge decide whose prayer to address?

 

What happens to visitation request? Will the court pass intriem while case is changed?

 



Learning

 10 Replies

laxmi kant joshi (instructor)     23 January 2017

When you both are ready for divorce then why didn't your lawyer talk to her to make it mutual concent divorce ,make your mou and get separated ,otherwise in contested divorce you both will loose many precious year of your life . You have to withdrawal your RCR petition and have to file a fresh petition u/s13 (1)(i-a) (i-b)of hma in the same family court . For visitation court used his discreation power and can give it after listening your arguments.

Sachin (N.A)     23 January 2017

Dear whatnot,

 

In this situation court will grant divorce as both parties are willing to take divorce but will not grant visitation rights because visitation rights granted during divorce proceedings are interim in nature and order of visitation rights will have no effect after divorce.

 

So, husband should file case of GWA before agreeing for divorce.

whatnot   23 January 2017

@ Sachin,

Expanding further...

Since petition will be changed, does the court has to look at merit on RCR or it just ignores and continues to look at it as fresh petition(My guess is no)

Interim visitation holds ground until divorcee decree is issued, right?.
 

On a outside box thinking, What happens husband changes his petition and then refuses to attend court.. Will the court take a judgment and award exparte to respondent?

 

Background///Tactic for extending visition. Need time for GWA filing.

Sachin (N.A)     23 January 2017

Originally posted by : whatnot
@ Sachin,

Expanding further...

Since petition will be changed, does the court has to look at merit on RCR or it just ignores and continues to look at it as fresh petition(My guess is no)

Interim visitation holds ground until divorcee decree is issued, right?.
 

On a outside box thinking, What happens husband changes his petition and then refuses to attend court.. Will the court take a judgment and award exparte to respondent?

 

Background///Tactic for extending visition. Need time for GWA filing.

 

Court will not look into the merits as both the parties are agree for divorce.

Yes, visitation rights will continue till pendency of the case.

Your last question that what if husband refuse to attend court hearing? 

It will depend :

if he stop attending court hearings after giving affidavit that he is ready for divorce. Then court will grant exparty divorce.

And if he stop attending court hearings after judge converted Contested Divorce to MCD then appearance of both the parties is mandatory and without the presence of husband court will not grant exparty divorce.and MCD will be dismissed as non-appearance of Husband 

And  wife will have to again file divorce petition on ground of cruelty and above behaviour of husband will also be  considered as cruelty

Sachin (N.A)     23 January 2017

May I know,

Are you planning this for yourself or someone else is doing it?

whatnot   24 January 2017

Thank you Sachin.

I'm doing it for someone as MCD is not possible.

Avoiding maintainance at all cost as well.

GWA will be separate.


(Guest)
Originally posted by : whatnot

Both parties are Hindu.

A case is filed by Husband for RCR (after 2 years of separation)with intriem visitation right request.

Respodent files counter claim to RCR and prays for a Divorce without mentioning any section.

Also files objection to visitation rights.

Counter objection from husband is due. Husband now wishes to change RCR to Divorce sec13 (1) (ia) based on false allegation in respondent counter claim and has chosen not to use desertion for divorce.

 

The question to  experts is,

What happens next? It would seem both parties filing divorce (but not mutal) and contesting.

This is astrological question and this is legal forum not astrology forum.

 

How will judge decide whose prayer to address?

This again is a astrological question and this is legal forum not astrology forum.  You can adopt a wait and watch approach her or contact her or her advocate or the judge for more details.


 

What happens to visitation request? Will the court pass intriem while case is changed?
This again is a astrological question and this is legal forum not astrology forum.  You can adopt a wait and watch approach her or contact her or her advocate or the judge for more details.

 

My advice is just stop biting nails, face what comes your way.  Keep it like that and you will have lesser problems in the future.

whatnot   24 January 2017

@Helping hand.

I'm glad you have given your opinion to best of your ability.

Thank you.

 

sai narayana   24 January 2017

If both parties files divorce, then the issue of divorce is no longer contention and the only left over contention points are alimony & child visitation and so, the court will arrange mediation to settle those contentional issues. That's it. If any criminal cases are going on, it may refer parties to lok adalat for settling all those, civil and criminal.

For avoiding maintenance, decree of RCR helps but filing a petition for RCR itself is of no help because, in pending RCR proceedings also S24 HMA applicable.

So the best option is ask the court to arrange or send for mediation, it's good for all purposes.

whatnot   24 January 2017

@sai narayana,

 

Thank you. That's nice forethought. I guess it validates court procedure. I was concerned would the judge get into intracaies of who's fault or move into finalising points of divorce.

With many cases pending at the court, I guess it will move into alimony and child custody.

Good reasoning.

Thank you

 


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