PROCEDURE


A wife filed a petition and sought relief of  dissoloution of marriage on the ground of cruelty.  Husband opposed the petiton and filed a counter claim under S.23A and sought relief of dissoloution of marriage on the ground of cruelty.

As both the parties have sought the same relief, can not the court straight away grant the relief to the parties and dispense with the trial?

Is the court still required to conduct a trial to find out which of the two was cruel before granting the relief?

 
Reply   
 
Advocate

The Case of the Petitioner-wife  is that Husband is Cruel and the same is allegation agaisnt her husband - to be proved

The Case of  the Respondnet - Husband - Counter Claim Petitioner is  that his  wife  is Cruel and the same is allegation agaisnt his wife  - to be proved

It is better both should be advised to file  a Consnet Divorce Petition U/s 13- B - with out mentioning of the allegatiosn each other !

 
Reply   
 


Advocate

I am of the view that in either way the marriage is on the rock beyound redemption, and the court should proceeds and grant dissolutions of the marriage.

 
Reply   
 

Assumi sir,

I fully agree with you.  But what is the legal sanctity of such a dissolution of marriage?

Rao Sir,

Is there a need to file a fresh petition u/s 13B? Would a consent under O.23 R.3 of CPC not sufficient?

 
Reply   
 

In Divorce cases consent under O.23 R.3 of CPC not aplicable.

In the case you mention the court will convert your case in 13 B .there is no requirment of fresh petition

Go with case of Rupa Reddy vs Prabhakar Reddy AIR 1994 Karnataka 12.


Total likes : 1 times

 
Reply   
 
Medical Value Travel

wow excellent que. too similar to my case. 4 yrs back my wife filed for divorce S. 13 (1) (ia) (ib) and I filed for divorce U/s. 23 A HMA as well as a seperate application few months after U/s. 151 CPC asking for same relief but not accepting to her cruelties.

We later converted our respective application to S. 13 B by becoming joint petitioners to MCD. At time of first statement recording she hesitated under the (whisper) influence of her then counsel and said to court to give her time to think about it.

BTW the meter of coolign period started once we filed MCD It took her 12 months to think about giving recored consent and then after 12 months I filed Memo to Court to ask both petitioners if we still want to go MCD route. During those days Court refused askign this que. base don my Memo to Court, resulting me out of frustration to withdraw my consent from such MCD and I said let us now contest it  :-) Well just 1 week after my unilateral withdrawl of MCD pops a judgment from Hon'ble SC that it is must for the Court to ask consent of parties in MCD but I was 1 week late there :-)

Now since I converted my S. 23 A into S. 13 B I recently once again filed S. 23 A with new facts by simultaneously pleading U/O 8 R 2 CPC 'new facts" thereby setting fresh cause of action since I am defendent to her divorce petiotion.

More news soon anyhow our marriage is under hard volcano mud rocks so all trial errors and "fault theory" based proceedings rutt I am forced to experiment before court, I will update soon the climax as I hv no other options other than to be at mercy of trial courts application of mind. That is why I wonder if law is n the Books or in the minds of various Lordships and/or as they may please at the end of the day :-)
Rgds

 
Reply   
 

Pranjal,

Why would O.23 R.3 not apply?  Especially after the introduction of 13B which makes agreement for divorce no more unlawful.

 
Reply   
 

Respected Anil Sir,

Order 23 R 3 Apllies only there , where the Compromise is not void ,voidable or illigel as per contract act.

here  Divorce can not be made on the basis of Contract between husband and wife. Even there is compromise in 13 B but it should be presented Before Court For passing Decree of divorce.

parties them selves can not take divorce by themselves as contract of divorce


Total likes : 1 times

 
Reply   
 
Advocate

I agree with the explanation given by Shri P Srivastava

 
Reply   
 

Even under O.23 R.3 Compromise has to be presented before the Court who will then pass a Consent decree. 

Besides after introduction of 13B Consent/agreement/compromise is not unlawful under the contract act. If the trial court pass such a consent decree under O.23 R.3 can it be faulted? If so what are the grounds on which you would find fault with such a decree?

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

  Search Forum








×

Menu

Post a Suggestion for LCI Team
Post a Legal Query
Forensics & Evidence     |    x