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Deekshit Kumar (private)     04 May 2024

Mutual consent divorce - cause of action arose abroad

Hi 

Please provide me with any citation in regards to the situation below:

1) Marriage performed in India, Hindus
2) Disputes arose in India, but both Husband and Wife travelled abroad and as disputes increased living separately abroad
filed petition under Section 13-B of HMA in India
3) Both wife and husband through their respective Power of attorney holders.
4) Judge about to dismiss this MCD petition based on "living separately abroad" cause of action.

Thank you in advance.

Deepak

 



Learning

 4 Replies

T. Kalaiselvan, Advocate (Advocate)     05 May 2024

The court cannot dismiss the case if the petition is filed jointly by both the aprties and have decalred that they are living separately away from each other for a period of one year or more.

The cirteria for filing divorce petition is that the marriage should have been solemnised under the provisions of Hindu marriage laws in India and the parties have submitted adequate proofs to establsih this fact.

Besides the parties have declared jointly that they are living separately for a period of more than a year. 

Therefore the court cannot dismiss the divorce petition filed on the grounds of mutual consent at least for the reasons you have stated here.

If he does so then you can prefer an appeal against the dismissal order before high court 

1 Like

Dr. J C Vashista (Advocate )     06 May 2024

Some vital information is missing from the post.

Consult your lawyer.

Deekshit Kumar (private)     07 May 2024

Sir, Namasthe!!

Judge is taking the point that though the disputes arose in India, as cause of action "living separately" occurred abroad....foreign court is the competent court to decide divorce and the current local court where the petitioner No.1 resides (holds aadhar and passport with this address, parents house) does not hold proper court to entertain this section 13-B HMA petition....

T. Kalaiselvan, Advocate (Advocate)     08 May 2024

It is an incorrect inference of underlying law.

You may ask the court to either return the papers with the said remarks or to dismiss the case on the same grounds.

You can then prefer a revision petition for direction to trial court by instructing it observe the proper procedures of law against the remarks for returning the papers or to prefer an appeal before the appellate court against the dismissal of the case.


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