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Sukhija (Advocate)     16 April 2009

Separate residence, divorce

Hi

Can one petition be filed in family court under Hindu Marriage Act u/s 13(1) (ia) and u/s 18 (2) (b) of Hindu Adoptions and Maintenance Act ? Or I have to file 2 different petitions under two different act?

 



Learning

 7 Replies

Jaswant Singh (Lawyer)     17 April 2009

You can file one petition seeking differents reliefs out of the same facts and circumstancs of the cases under the various provisions of law

1 Like

(Guest)

Sh. Jaswant ji,
Agreed but may I have your views on below two bars please;
(i) Sudershan Lal V/s Smt. Deepak @ Reema Khurana, 1985 Cr. L.J. (NOC) 52 and
Paramjit Kaur V/s Surinder Singh, 1992(2) Criminal Court Judgments 171 (Pb. & Har.)
– it was held that the wife can claim only one  maintenance. Though there are different forums open to her to claim maintenance, yet there cannot be parallel running of different maintenance orders, for one and the same. Only one of them is enforceable and others remain just decelerate in dormancy or consumed. It is for the wife to choose as to which of the 
two orders she wants to enforce. 

(ii) Ravinder Haribhau Karamkar V/s Shaila Ravinder Karamkar, 1992, Cr. L.J. 1845 (Bombay) – in this reference case, it was held that during the pendency of a filed regular civil court petition under Section 24 of HMA, wife also simultaneously filed a parallel petition 
under 125 Cr.P.C. of the Code. It was held that the petitioner wife could not be allowed to ride two different horses at the time (two simultaneous proceedings in two different courts) and could not be permitted to continue the maintenance proceedings under section 125 Cr. P.C. when she has already chosen the alternative remedy by filing first a regular civil court suit for maintenance. It is well established that the judgment of the civil court shall prevail over the 
judgment of the criminal court. The natural justice demands that parallel proceedings cannot be allowed to continue in different  courts.  
Rgds,


(Guest)

Mr. Arun Kunmar's citations are not relevant in this case.  The Section 13 (1)(ia) is for "Divroce", where as the Section 18(2)(b) is for maintenance.  Both the relief can be sought.  But my understanding goes that it is better to file two separate petitions, because the reliefs sought are different and are accrued from two different special statutes.  Suppose, if the petitioner seeks divorce under Hindu Marriage Act and seeks interim maintenance from the very Act, then also one petition and one interim application lie and in a single petition, the petitioner cannot seek the relief. 

Jaswant Singh (Lawyer)     22 April 2009

Arun Ji.

The law is very clear that one can not take benefits twice. There is right of maintenance to the wife and childern in different status and all those rights can be simiultanously execrised however the court will execute and allow the benefit only once.

We genearlly file application under different act with a view that different court will pass and grant the different amount of maintenance and thus we can get execute that one which is on higher side. These two judgement cited by you are law of land and the court follows them

Prabhat Kumar (Advocate)     22 April 2009

since you intend to claim 2 reliefs under deferent provisions of law you should file to separate petitions.

Sukhija (Advocate)     23 April 2009

Hi thanks to everyone, U r right, I was asked to file petition under HM act only for divorce and claim maintenance under HM act. Thanks everyone for ur support.

Y V Vishweshwar Rao (Advocate )     23 April 2009

 Along with Petition U/s 13 HMActa petition-  can be filed for (interim) maintanance 

Under Hindu adoption  and maintance  Act  Suit  for maintance to  be filed &  IA for interim Orders  


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