Dear members,
Please through some light on the following circumstances...
Suppose if the husband files a divorce petition u/s 13(1)(1-a) on cruelty grounds, and then if the wife files a counter saying he is an impotent and also seeks a divorce on the cruelty grounds. If I understand correctly then she is essentially taking advantage of the husband's first divorce petition to extort huge amounts as maintainance u/s 13(1)(1-a). Here, though she also wants to get rid of husband but waited or rather forced husband to file for divorce and then on his grounds she is praying for the maintanance.
If her allegations were to be true, she first would have filed for a divorce u/s 12(1)(a), actually it is the pray for the voidable marriage under impotency grounds. In this case she is not entitled to any maintainance, as it is a voidable marriage.
In these circumstances, what the husband can do to counter her wish of looting money.
(1) Can he ask (or bring to the notice of ) the court, that her prayer amounts to voidable marriage and under voidable marriage, she is not entitled for any maintanance? She filed maitanance u/s 24 HMA?
(2) She is claiming in her counter petition to the husband's divorce petition that she is subjected to biological cruelty (lack of s*x) due to husband's impotency. Can this be defined as a cruelty at all? Since, she is claiming that husband is impotent, then where is the cruelty involved here? The law has a provision for her to take divorce under impotency and voidable marriages. Is this a valid point? Is there any judgement like wife can't seek maintainance under these circumstances, since she can't bring (mix) both impotency and cruelty together?
(3) If the husband is potent, is her divorce as well as maintainance are not maintainable? If in the counter to the maintainance petition u/s 24 HMA, if husband provides proves for his potency, then will the court consider this fact and reject her petition?
(4) If the husband can't submit any proof, as doctors would issue such certificate only under the court direction, then court would grant her interim maintainance until the pendency of the litigation, so this is the loophole in law, she would want to extract money, and since courts normally grant from the date of petition, then it will be real big money? Is there something husband can do to stop this?
Could you please through some light on these questions from your experiences and understanding of the law?
Thanks & Regards,
Naresh
