NC (BM) 15 April 2013

Getting divorce decree, appeal and remarriage

I was married in 2004, we had some problems to continue relationship after 7 years of our marriage. She finally left my house on 4^th May 2011 along with our four and half year old son. Just after the she left I filled petition on 9^th May 2011 under section 13 – Hindu marriage act for divorce on the basis of cruelty.

After 4 months, she filled and FIR in Mahila Police station under section 498A and 406. Also she filled petition under domestic violence (section 18,19, 20, 22 and 23). In July 2012, the magistrate passed an interim order for maintenance of INR 3,500 per month against which both of us has filled appeal in higher court.

In Oct 2012, I also filled a petition in family court for custody of the child under section 25 – Guardian and wads act 1890.

I tried a several times that if both of us do not want to live together better we go for mutual divorce but she has got a negative approach and she want to harass me at any cost.

In our divorce petition the mediation has been done but it was not successful. I have a few question regarding the divorce case…

In case I got the decision in my favour for the divorce case from the lower court, how much time will I get to deposit the alimony.
How does normally court decide the amount of alimony. And what is the process. It is like that until the alimony is not given, the divorce is not granted. What if she refuse to take the alimony and go the higher court against the decision of family court. Than again I have to fight for a few years there???
The only thing that can prevent me from any action from the higher court is that I should remarry someone with in one month I get order of divorce from the lower court. Is this true?
After giving her the alimony, still do I need to give the maintenance amount being paid under the domestic violence case.
If I win in the divorce case, how is it going to effect the 498A and Domestic Violence case.

If more information is needed from me in order to give me an advice, please feel free to ask.

Thank you.

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7 Replies

Rahul Kapoor (Legal Enthusiast) 15 April 2013

hello,

you should not remarry till appeal period ends.

she cannot claim alimony or maintainence twice.

if you win the case then nothing going to effect other cases.

regards-

rahul.gogreen@gmail.com

Goutam Prasad (Advocate) 15 April 2013

In response to your first question, I have to inform you that the time period for paying alimony is fixed by court on the basis of number of circumstances, there is no fixed rule to provide for time period.
Again for quantum of alimony, there is no fixed rule or formula, it depends on your income, her living style before and after marriage, possibility of her income / expenses after divorce, expenses needed for child, etc.
After decree of divorce is granted, you can not marry till 60 days and if she files appeal in between then till diposal of the appeal.
After giving her the alimony and having proper divorce, she may not be entitled for the maintenance amount being paid under the domestic violence case, but she will still have right to file petition for maintenance under section 125 of Cr.P.C. till she re-marry. However, in case of mutual consent divorce, such right may be curtailed through mutual agreement.
Even if you win in the divorce case, it will not affect 498A and DV as both are differnet procedure. Dovorce is civil proceeding whereas other two is criminal. Howver, if your advocate is good enough he can use discrepany of depositions, if any, in all such cases in your favour

Goutam Prasad

Advocate

Supreme Court of India

Mob: 9810753838

https://www.aegisjurist.com

https://www.facebook.com/aegisjurist

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NC (BM) 15 April 2013

Originally posted by : Goutam Prasad
	After decree of divorce is granted, you can not marry till 60 days and if she files appeal in between then till diposal of the appeal.

Originally posted by : Rahul Kapoor
	hello, you should not remarry till appeal period ends.

Gents, Thanks for your valuable reply. I need to know why one can not marry just after he gets the divorce decree? Can you please give me some reference / section / law. Does it mean that I can not stop her going to higher court and to spoil my next several years, all over again.

Also I need to know how does the divorce decree is awarded from the family court. Is the aluminy a part of the order of divorce decree. If she is not going to be happy with the order and want to screw me up for a few more years, can she reject to take the alluminy and go to the higher court so that I do not get the divorce decree at that point of time. I really need to understand the process.

Gopal Arora (Engineer) 15 April 2013

@Rahul

Winning divorce is difficult. You should have solid evidences of cruelty. Even if you win, she will file appeal in High Court and can go upto Supreme Court. If you want to win then concentrate on criminal cases and get acquittal first.

You cannot remarry if she files appeal in High Court or Supreme Court.

1 Like

NC (BM) 23 April 2013

I understand by now that one has to wait for the apeal period to over (read 90 days) before remarriage.

Assume that second party go into higher court and file apeal agaist the order. Assume that likewise first party have been shifted to some other city with his parent and doing a new job, address of which is not known to the second party. If now the first party remarry on the 91th day, what can be the consequences.

NC (BM) 24 April 2013

Can anybody help me here on my points which are there in my last post?? Thanks.

Msk-need -nuetral- laws (self) 24 April 2013

@ NC, you will have to prrove your innocence if she files bigamy with evidence citing the above that you are not aware of her appeal in HC and you married after 91 days.