Fresh divorce case by wife when husband's divorce case is pending in hc
AMSARAJ.J
(Querist) 08 February 2014
This query is : Resolved
Respected Sirs,
1. My Divorce case is pending with HC,Chennai at present.(Against the Dismissal of my divorce case in district court)(Case filed on 2009 and numbered but notlisted sofar)
2. My appeal against RCR allowed in district court in her favour also pending in HC,Chennai (Case filed on 2009 and numbered but notlisted sofar)
3.Domastic violence case filed by wife during 2010 is pending in District Court at present. In which ,she convay her interest for amicable settelement by getting lumsum amount.
In this situation, she given the following proposal to finalise settelement :
A) She has to file Divorice case in her place at sub-court and I have give concern for the same.
B) Then I have to keep ready the settelement amount by DD in her favour and Fixed Deposit in my child name (Female child-Aged-13 yrs)
C)After getting divorce order,I have to give DD & FD.
C)Then she has to withdraw DV Act case in district court and I have to withdraw my Appeal cases in HC,chennai.
My query is - when divorce appeal by husband in HC, Can wife file fresh divorce case in lower court (SUB-COURT) in her place,becasue of the above settelement and due to delay in HC.
ajay sethi
(Expert) 08 February 2014
as on date your divorce case is dismissed . appeal has been filed by you against order of dismissal . whether any interim orders passed by HC in said appeal ? you can file consent terms in HC . that you will pay her X amount and place fixed deposit in name of your child . that divorce be granted to parties by mutual consent .
Rajendra K Goyal
(Expert) 08 February 2014
Well advised by the expert ajay sethi ji, agree to it.
prabhakar singh
(Expert) 08 February 2014
Yes!She can file a fresh case of divorce even when your appeal is pending.No legal bar on her.
And even you both can file mutual divorce case,no bar on it due to pendency of your appeal.
The appeal can be not pressed after decree of divorce case.
The only precaution you need to take that she does not get agreed money before a decree of divorce is passed by court on her or mutually consented petition.
Even You both can file a compromise petition in pending appeal and the High Court would list and pass the decree.
So all these alternatives are there.
prabhakar singh
(Expert) 08 February 2014
Yes!She can file a fresh case of divorce even when your appeal is pending.No legal bar on her.
And even you both can file mutual divorce case,no bar on it due to pendency of your appeal.
The appeal can be not pressed after decree of divorce case.
The only precaution you need to take that she does not get agreed money before a decree of divorce is passed by court on her or mutually consented petition.
Even You both can file a compromise petition in pending appeal and the High Court would list and pass the decree.
So all these alternatives are there.
Devajyoti Barman
(Expert) 08 February 2014
Since appeal is pending in HC, no fresh case can be filed.
Yes, you can make compromise in the HC itself or withdraw the appeal and file a MCD wherein incorporate all the terms mentioned above.
Biswanath Roy
(Expert) 09 February 2014
IF APPEAL WAS ADMITTED BY THE HIGH COURT THEN NEITHER OF THE PARTY IN IT CAN INTERFERE WITH IT ON THE SAME SUBJECT OR ISSUE CONTAINED IN IT. BECAUSE IT WILL BE
INTERFERENCE WITH DUE COURSE OF JUSTICE AND THAT TENTAMOUNTS TO CONTEMPT.
prabhakar singh
(Expert) 09 February 2014
The appeal lies as a matter of legal right hence must have been admitted and yet can be 'not pressed' by husband appellant whreafter a MCD petition can be filed.
I think wife has not sought decree of divorce as counter claim nor can now seek for any fresh cause of action accruing now.
If she has grounds to lay a petition of divorce,i think, she can do so and that should not be deemed as interference in appeal pending.
Let me assume that husband has filed divorce on the ground of adultery which wife is denying and contesting and petition goes dismissed ,husband files appeal.
Soon there after husband beats wife and she files an FIR.
This beating amounts to cruelty,a ground of divorce.
I am puzzled if wife has a cause of action
to seek divorce on grounds of cruelty or not(if she chooses to do so) and still continues to contest husband petition(now an appeal) filed on the ground of adultery ????
Biswanath Roy
(Expert) 09 February 2014
There is hardly any scope for speculative views of the EXPERTS. We must confine ourselves strictly to the query only, which I did. Of course we can give advise if such scope is hidden in the query.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 February 2014
Law is logic and there can never be a final word of what should be done and what can not be done .
So no body should try to stifle discussions in the matter.
Many people deffer with me many times it does not mean I should stop them in expressing their views.
Many non legal persons or those who do not have KNOWLEDGE of actual court working or of recent cases are happily doing it, let them be happy with their enterprise so that this site keeps to go on and on.
And Mr Roy some where on this site you have commented that you got judgments even against SC from WB High court and even naming the Judge .
For such extra ordinary course of justice will bring ques from HIMALAYA TO KANYAKUMARI.
Biswanath Roy
(Expert) 09 February 2014
My Dear Learned Friend Defence,
I appreciate your mode of defending. For your information once Hon'ble Justice Late Sabyasachi Mukherjee of Calcutta High Court delivered a judgement against the applicant which was finally took up by the Hon'ble Chief Justice of India Mr. Beg who in his judgement categorically written that the Judgement of Mr. Justice Sabtasachi Mukherjee is erroneous and remand the case to Calcutta High Court to revise the order. Mr. Justice Sabyasachi Mukherjee while dealt with the order of Chief Justice Mr. Beg and stated that his earlier order is correct and as such he is unable to comply with the direction of the Hon'ble Chief Justice of Supreme Court. After 3 months of this incident Justice Beg appointed Justice Mukherjee as a companion Justice of the Supreme Court of India. Every body knows this incident because it was flashed in the News papers.Afterwards Mr. Justice Sabyasachi Mukherjee became the Chief Justice of India.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 February 2014
You are avoiding the main issues whenever confronted.
You are now directing here senior and seasoned experts to comment in a particular way which is not your domain.
By the way even in the forum section you had commented that you get knowledge from much and much higher ups which is beyond the reach of all others.
In the same flush of boasting you have cleverly avoided to reply to the query that which law allows an accused in an individual criminal case to give power of attorney to appoint an advocate.
Please tell us so that not only us but millions in this country will benefit and will certainly pay you heavy fees which had claimed that you charge.
Biswanath Roy
(Expert) 09 February 2014
Law experts enacts laws. When they do so they unwillingly create some flaws in laws.To come out from the rigor of law one should try to find out it's flaw and by using or through such flaw one can easily come out from the rigor of law. This is from my own experience.
T. Kalaiselvan, Advocate
(Expert) 10 February 2014
I think Mr.Roy has carefully avoided all the questions raised by Mr. Advocate Defense. It is not that he is not knowing the answer, he knows that whatever he claims actually do not exist, hence he is avoiding to answer. Now to author's question:, if a consensus arrived between two, the appeals may be withdrawn, divorce under mutual consent can be filed, the settlement of alimony ans FD in child's name can be done after she withdraws all her cases. On the basis of mutually agreed petition filed jointly, there is nothing wrong in filing the same before the lower court while an appeal is pending before the high court,this is a matrimonial dispute.
Biswanath Roy
(Expert) 10 February 2014
Yes, I normally reluctant to answer the irrelevant questions which are not in connection to the query because this platform is not for teaching law or to guide other Experts by supplying case laws. In fact I cannot be an EXPERT OF OTHER EXPERTS to undermine their legal knowledge. In the matter I ONCE AGAIN REITERATE that my views already posted are correct according to the facts disclosed in the query. Besides, one must know that the Rule is always above the Obiter Dictum. and Judgement of S.C. as referred to is the latest one.
