Wife filed divorce under hma section 12 after 4 years of desertation with package of 498 & 125
Abhimanyu
(Querist) 09 March 2014
This query is : Resolved
Hello Friends,
Wife Filed Divorce under HMA Section 12 after 4.5 years of Marriage with the ground that she has been harrassed for Dowry & she has been deserted for last 4 years.
Husband Objected the Divorce under Sect 12 after 4.5 years as he is already having the RCR decree (Ex-Partee as wife never appeared for RCR in court)
Is it possible to File for Divorce
(in Marathi Vivahache Vicchedan Karun Arjadaras Gairjadarapasun Ghataspot Denyat yava)
under Section 12 of Hindu Marriage Act?
What are the possible options open for Husband for his reply to this case?
Advocate M.Bhadra
(Expert) 09 March 2014
The husband can challenge the issuance of process and can proceed for quashing of Divorce suit initiated by wife as the same will amount to abuse of process of law as because already decreed in the marriage tie under RCR.Various Court in India is very clear on this issue where husbands are harassed by wife by initiating D V proceedings post Divorce or restitution of Conjugal Right.So,divorce suit is not maintainable which is barred by res-judicata
Doctrine of RES-JUDICATA
In [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., AIR 2010 SC 818], the Supreme Court has explained the doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of res judicata,enacting from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial process.
Devajyoti Barman
(Expert) 09 March 2014
Husband can also file counter claim of divorce on non-compliance of RCR decree. Rather he should have filed earlier.
ajay sethi
(Expert) 09 March 2014
whether wife has made out a case for annulment of marriage under section 12 HMA . if marriage has not been consummated she ought to have moved application within one year of marriage . . if it is wife case that consent was obtained by fraud she has to move court within one year of marriage .
it appears that divorce would have been filed under section 13 and not 12 as mentioned by you
Raj Kumar Makkad
(Expert) 11 March 2014
Such petition is not maintainable at such belated stage but your life cannot run with such lady so better to go for mutual consent divorce as you both want to get rid of each other.
