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Taken for granted (housewife)     05 May 2014

To make husband mistress party in contested divorce or not?

My husband has filed for divorce after 11 years of marriage.Reason is his extramarital affair.In divorce petition he has given reason of mental cruelty citing false incidents and that although we are living together there is no physical relationship for last 4 years(this is not true).I want to contest case.

One lawyer told me as I have no proof of extramarital affair I should not make his mistress party in my petition.

Other lawyer is saying I should give name of that women and court will summen her and during cross examination stage the truth will come out.What should I do



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 5 Replies

Biswanath Roy (Advocate)     05 May 2014

Without any strong ground and lawful reason Divorce after 11 years of marriage has a little chance for it's maintainability.  Allegation for keeping a mistress unless proves bodily relationship and direct cohabitation cannot be said as bigamy of your husband , therefore such allegation shall not fructify your purpose.

1 Like

Daksh (Student)     05 May 2014

Dear Taken For Granted, If you want to contest divorce petition of your husband there is no use of alleging infidelity (extra marital affairs) as admittedly you will agree to be divorced what your husband wants instead you should contest the case proving all his allegations false and insist on joining the matrimony (stating that you were always willing to join the matrimony) and you are still willing to do so. Last but not least there is no harm in calling the lady with whom your hubby allegedly have had extramarital affairs if this can prove his case wrong and vindictive but it will require a lot of tact and court craft to do so. It is not necessary to make her a party as she can be called as witness. I hope this clarifies.
1 Like

T. Kalaiselvan, Advocate (Advocate)     07 May 2014

I think Mr. Daksh has suggested some valuable ideas to overcome the issue.  You may follow the same while challenging his case strongly, do not ever get confused by taking different opinions from different people, there is nothing wrong to take a second opinion but see what suits you and go in that direction.  If you can prove his adulterous life or extra marital relationship with his concubine then go ahead with the details or else you can include the issue in your pleadings especially while cross examining him so that he will certainly be taken aback though he may pretend to be not affected at all. The clever strategy adopted may bring some respite.

1 Like

Adv k . mahesh (advocate)     08 May 2014

okay 11 years is not a small period and any kids but since 4 years no extra relations 

thus even you want divorce then do not contest and if you do not want divorce and you want to give a chance to your 11 years of marriage then yes contest as said above but once you contest think about your kids if you have out of your marriage 

every one whom you ask will give a valuable suggestions but it is you finally should decide about your marriage life a chance 

1 Like

Shantanu Wavhal (Worker)     08 May 2014

@ TAKEN FOR GRANTED, 

its mandatory to make the adultrator a co-respondent.


RULES OF VARIOUS HIGH COURTS UNDER HINDU MARRIAGE ACT, 1955 PART IV

 

4. BOMBAY HIGH COURT HINDU MARRIAGE AND DIVORCE RULES, 1955


5. Necessary parties.—(a) In every petition for divorce or judicial separation on the ground that the respondent is living in adultery or has committed adultery with any person1, the petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense with the joinder of such person as a co-respondent on any of the following grounds :

(i)  that the name of such person is unknown to the petitioner although he has made due efforts for discovery;

(ii)   that such person is dead;

(iii)   that the respondent being the wife is leading a life of a prostitute and that the petitioner knows of no person with whom adultery has been committed;

(iv)   for any other sufficient reason the Court may deem fit to consider.

(b) In every petition under Section 13 (2) (i) of the Act the petitioner shall make ‘the other wife’ mentioned in that Section a co-respondent.

 

 

(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5(1) is contravened, the petitioner shall make thespouse alleged to be living at the time of the marriage a co-respondent.

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