Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Prateek (NA)     17 February 2009

What is the best course of action?

I would be highly grateful if you could please clarify my doubts and guide me in the proper direction. I am providing a detailed information so that learned members can tell me what is the best course of action.

Marriage done in July 2009

Wife stayed with the husband for 20 days went back to her place in the month of August where she was working before the marriage. Had a meeting with in-laws and she came back to stay with the husband in October. She stayed with the husband for one month and started living separately (now in husband's city) as she got her job transferred to husband's place when she came back for the second time.

Marriage has not been consummated. She never allowed her husband to come near to her saying she is not happy in this marriage, has no love towards her husband, has no feelings for him, is not attracted towards him physically. She never said such things before marriage even though there was a five months gap between engagement and marriage. And, she never said such things in front of others. In front of others, she always said it is the husband who is not treating her well and spying on her and noting her every move.

They have also started threatning with dowry cases, cruelty, and have also startedsaying bad things about us in our society.

She was engaged to another person in the year 2007, but her engagement was called off. They did not tell us this thing before the marriage. We came to know about this after the marriage. Is this a ground for divorce i.e hiding information?

She was also having an affair with some person (different from the person with whom she was engaged), but her parents did not agree for the match. We have one letter that she wrote to him after engagement, but it is not enough to prove that she is still having relationship with him.

She has also said that she does not want to go ahead with this marriage, but she changes her track when she is in front of her parents or relatives. In front of them, she tells them that she wants to stay with me and want to work on the marriage.

We do not have any other sufficient proof to prove all this in the court of law except that if they file a case of cruelty on us, we can prove that we always treated her well. I have all the hotel bills, plane tickets, restaurant bills, bills of tour packages etc. to show that she was never illtreated.

Considering the above facts, what should be the best course of action:

--nullity of marriage on ground of the fact that marriage has not been consummated.
--nullity of marriage on ground of hiding her previous engagement (is it too weak an argument)
--mutual consent divorce if she agrees; if yes, then within one year where should wesubmit our petition? directly to the High Court or to the family court?
--normal divorce; on which ground?

Thanks for your patience reading and your valuable advise.

Prateek



Learning

 10 Replies

PALNITKAR V.V. (Lawyer)     17 February 2009

Well, I am afraid that the husband has no good ground for having regular divorce u/s 13 of the Hindu Marriage Act. [ I believe that the parties are Hindus]. The marriage can not be declared as null and void on the ground of non consummation nor on the ground of hiding information. The only course open is to have divorce by mutual consent before Family Court or other competent court. High Court does not entertain divorce petitions directly.

M. PIRAVI PERUMAL (Advocate & Consumer Rights)     17 February 2009

I agree with the view.

AEJAZ AHMED (Legal Consultant/Lawyer)     17 February 2009

Dear Prateek,


What do you mean by this:



Marriage done in July 2009  ?


Prateek (NA)     18 February 2009

By "Marriage done in July 2009". i meant that the marriage was performed in July 2009. So, the marriage has not completed one year yet. 

Prateek (NA)     18 February 2009

Thanks to all of you for your replies. Need some more clarification:


- Can't we file for divorce on the bases of "mental cruelty" as she did not allow her husband to consummate the marriage? She did not perform her marital obligations.


- Also, isn't hiding one's previous engagement comes under the fact that they did not tell us this important thing, which will play a crucial role in deciding whether to marry that person or not?

PALNITKAR V.V. (Lawyer)     18 February 2009

I know that denial of marital pleasure amounts to mental cruelty. But in this case the period is really too short and the wife has also come out with counter allegations. She may justify refusal to have s*x. She may even go the extent that the marriage was consummated! She may get medically examined and bring proof that she had intercourse. It is very difficult to prove non consummation. Hence, I said that divorce u/s 13 is not probable. Hiding information about previous engagement is not so serious as to get either nullity or divorce. Of course this is my view. If possible I will try to find out rulings on this.

rajini (Lawyer )     18 February 2009

better thing what you can do means if you both are not interested go for muthual consent divorce. so you can marry any person as you like

AEJAZ AHMED (Legal Consultant/Lawyer)     18 February 2009

DEAR PRATEEK,


 " By "Marriage done in July 2009". i meant that the marriage was performed in July 2009. So, the marriage has not completed one year yet. "


We are still in the Month of Feb, 2009,   and you are saying that your marriage was performed in July 2009.  Its showing that, how far and fast  you are going as per the facts stated by you.


First correct yourself and go for a suitble action action as opined by my our learned brothers 

Prateek (NA)     18 February 2009

OH! sorry for that; I apologize for my overlook; instead of pointing by you. Actual date is "July 2008".


Thanks


 

S.B.adil rahman (Legal Consultant )     18 February 2009

Why d not you send a notice to wife for having deserted you without any reason? Ask her to return back to your place  for living. suggest her that if situation does not allow her to live her flat which is perhaps in your city you are agreed to shift there. If she does not acceed to your request you can file a divorce suit on the point of desertion and cruelty for nonconsummation. but in order to save yourself from police laws, you submit petition to teh relevant government agencies for restoration of conjugal life and for arranging counselling with wife for restoration of marital life. This will prove your intention in case she files a police case.


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