Can divorce suit be filed u/s 13(i)(ia) as per hm act when the marriage was as per sp.m.act?
K.K.Ganguly
(Querist) 06 February 2012
This query is : Resolved
Would the Ld. Experts kindly advise on the following?
Husband filed Mat Suit u/s 13)(i)(ia) of Hindu Marriage Act when the marriage was solemnised u/s 16 of Act XLIII of 1954.
Wife does not want to give Divorce.
Is the above Mat Suit liable to be rejected as per Order 7 Rule 11 of CPC since the marriage was not solemnised as per Hindu Marriage Act?
Devajyoti Barman
(Expert) 06 February 2012
This is not a ground for rejection of plaint as the court would allow the prayer for amendment once the anomaly is detected.
M/s. Y-not legal services
(Expert) 06 February 2012
if any petition filed u/s 13)(i)(ia) of Hindu Marriage Act mean you have to file counter statement only..
a suit can not filed u/s 13)(i)(ia) of Hindu Marriage Act.. so your query is vague..
-tom-
Nadeem Qureshi
(Expert) 06 February 2012
Dear Querist
if your marriage solimanized under Special mArriage act then only section 27 Of the act will be applicable for divorce according to SPA
read it.
27. Divorce.- 1[
(1) ] Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent-
(a) 2[ has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860 ); 3[
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) 4[ has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause,-
(a) the expression" mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression" psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form; or].
(g) has 5[ been suffering from leprosy, the disease not having been contacted from the petitioner; or
1. S. 27 re- numbered as sub- section (1) of that section by Act 29 of 1970, s. 3.
2. Subs. by Act 68 of 1976, s. 27, for cls. (a) and (b).
3. proviso omitted by s. 27, ibid.
4. Subs. by s. 27, ibid., for cls. (e) and (f) (w. e. f. 27- 5- 1976 ).
5. Certain words omitted by s. 27, ibid. (w. e. f. 27- 5- 1976 ).
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 1[ 2[ Explanation.- In this sub- section, the expression" desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 1[ 3[
(1A) 2[ A wife may also present a petition for divorce to the district court on the ground,-
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956 ), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974 ), (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 ) (5 of 1898 ), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]
(2) 4[ Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 , (29 of 1970 ) may present a petition for divorce to the district court on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
1. The word" or" at the end of cl. (h) and cls. (i) and (j) omitted by Act 29 of 1970, s. 3.
2. Ins. by Act 68 of 1976, s. 27 (w. e. f. 27- 5- 1976 ).
3. Certain words omitted by s. 27, ibid. (w. e. f. 27- 5- 1976 ).
4. Ins. by Act 29 of 1970, s. 3.
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
feel free to call
Adv.R.P.Chugh
(Expert) 06 February 2012
Mr.Ganguly,
O 7 R 11 - that talks about rejection of a plaint - aims at keeping irresponsible law suits out of courts. IT goes to the maintainability of the petitioner. Rule 11 (sub rule (d) that you are perhaps referring to - talks when the plaint is barred by any law. Though the plaint deserves to be rejected on this ground but the court would be liberal if it is due to a bona fide mistake and would as aforesaid allow amendment of pleadings u/o 6 Rule 17 of the CPC to make the necessary changes in the title of the suit.
Govind
(Expert) 06 February 2012
I agree with Mr. Bharat Chugh. court will reject plaint if plaintiff not sought for amendment in plaint.
ajay sethi
(Expert) 06 February 2012
agree with experts that court would permit amendment of plaint and plaint need not be rejected .
niranjan
(Expert) 06 February 2012
O.7,rule 11 is not applicable in this case.
Raj Kumar Makkad
(Expert) 07 February 2012
Petition is not maintainable under HM Act in the given facts but can be got amended, if so applied and allowed.
