Hindu marriage act u/s 12 (2)
Querist :
Anonymous
(Querist) 30 August 2018
This query is : Resolved
Sir,
I filed a case for voidable marriage U/S 12 (2) at my district lower family court
The respondent did not appear for the hearing rather she gave reply by letter to the court that she is pregnant (As per me it is false). After repeated notice she did not appear. The family court pass the order on basis of Expartie and I got the decree on 18 May 2018.
The order is as below
"the Petition is allowed on contest against the respondent but without cost. The marriage of the petitioner with the respondent solemnized on 25.01.2017 is hereby held invalid by decree of nullity"
As per my advocate advise he told me you can marry after 30 days if there is no appeal.
I waited above 90 days and got married.
Now the respondent has approached one of sudden approached Mahilla Nari Sangh and forcing me for settlement. (But till date she has not appealed for my order(decree) in any court)
I want to ask the marriage which I have done is valid. Have I given the respondent maximum time for appeal?
After obtaining decree can the Mahilla Nari sangh force me.
Can I say them(Mahilla Sangh) that the matter is in the court and I am waiting for the judgement. (I have not disclosed my marriage to me, nor the respondent knows about it nor I have informed). I have kept hidden.
Vijay Raj Mahajan
(Expert) 30 August 2018
Inform the Mahila Sangh of the annulment of marriage by decree of nullity and there is no appeal pending in any court with regard to the decree of the Family Court. The matter is finally decided and no question of any settlement with this woman.
If the woman so desire can move competent court for any relief available to her and appropriate reply give by you in that court.
Mahila Sabha is not competent court and has no right to call you and disturb you. Tell them that you will file complaint against the Sangh for any criminal intimidation on the frivolous complaint of this woman.
Querist :
Anonymous
(Querist) 30 August 2018
Thanks for your valuable reply. I will do as per your reply.
But need one reply that can I disclose my second marriage?? Is it valid?? Or it will be challenged??
Guest
(Expert) 30 August 2018
Your description does not give any sense of reality of the case.
Kumar Doab
(Expert) 30 August 2018
Pls don’t post as AQ and post with your ID and you can get many responses.
Your ID does not mean your email id or phone number etc and don’t post these.
Before attaching any document erase all names, logo, email id, phone number, address etc to maintain confidentiality.
Kumar Doab
(Expert) 30 August 2018
IT can not be forecasted by anyone (other than God) whether the decree will be challenged by your spouse (Ex) or not!
If you ask; can your spouse challenge and approach court!
Yes any spouse, any citizen can approach court. This right of any spouse/citzen cannot be infringed upon.
However court shall decide the mater on facts, merits and provisios of law that applies.
What is being demanded in said settlement, as in your query?
You are being forced to settle; what and how much?
What was the opinion of yor counsel on absence due to pregnancy?
What were your reasons to have doubts on pregnancy?
Apparently NO child (biological/adopted), NO pending dues etc are involved in the matter.
For your understanding go thru applicable enactments, amendments and judgments that set the precedences…and take help of elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, a very able LOCAL counsel of unshakable repute and integrity specializing in concerned field of law e.g; Family/civil matters as in your case, and well versed with LOCAL applicable rules/personal laws, precedences, latest judgments etc …. and worth his/her salt, and your counsel can advise you after examining all docs, evidences on record ..
There are such very able counsels at each location.
Check for such counsels at LOCAL Family/civil courts, HC, SC…
You are always at liberty to go for 2nd, 3rd opinion from a very able LOCAL counsel as already suggested..
Preferably obtain legal opinion in writing.
Online portals have IT’S own limitations and are not substitute to in person opinion from a very able LOCAL counsel as already suggested..
A litigant must remain conscious of the fact that OP or counsels of OP can have their own strategy to fight and agitate.
Kumar Doab
(Expert) 30 August 2018
GO thru; Code of Civil Procedure 1908 - Schedule I
ORDER IX : APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE
https://www.nls.ac.in/lib/bareacts/civil/cpc/index.html
Special Marriage Act, 1954
39. Appeals from decrees and orders
http://www.advocatekhoj.com/library/bareacts/specialmarriage/39.php?Title=Special%20Marriage%20Act,%201954&STitle=Appeals%20from%20decrees%20and%20orders
THE HINDU MARRIAGE ACT, 1955:15, 28(4)
https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
The Marriage Laws (Amendment) Act, 2003 [Act, No. 50 of 2003] [23rd December, 2003]
CHAPTER II AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954
3. Amendment of section 39 In section 39 of the Special Marriage Act, in subsection (4), for the words "period of thirty days", the words "period of ninety days" shall be substituted.
CHAPTER III AMENDMENTS TO THE HINDU MARRIAGE ACT, 1955
5. Amendment of section 28 In section 28 of the Hindu Marriage Act, in subsection (4), for the words "period of thirty days", the words "period of ninety days" shall be substituted.
http://indianassociationoflawyers.com/admin/bareacts/THE-MARRIAGE-LAWSAMENDEMENTACT2003.pdf
Central Government Act
The Family Courts Act, 1984;19
https://indiankanoon.org/doc/373687/
(The Family Courts Act is a procedural law)
THE LIMITATION ACT, 1963
123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation.—For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service.
Thirty days.
The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
https://indiacode.nic.in/acts/9.%20Limitation%20Act,%201963.pdf
Kumar Doab
(Expert) 30 August 2018
And
Supreme Court of India
Savitri Pandey vs Prem Chandra Pandey on 8 January, 2002
Author: Sethi
Bench: R.P. Sethi, Y.K. Sabharwal
https://indiankanoon.org/doc/325522/
At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.
And
Allahabad High Court
Vijay Singh And Ors. vs State Of Uttar Pradesh And Ors
39…….an earlier special law cannot be held to be abrogated by
mere implication.
https://indiankanoon.org/doc/238792/
Jharkhand High Court
Smt.Shalini Keshri @ Shalini K vs Mintu Keshri on 6 January, 2010
https://indiankanoon.org/doc/598308/
Kumar Doab
(Expert) 30 August 2018
And
Bombay High Court
Arun Kautik Pawar vs Sau Laxmi Arun Pawar
https://indiankanoon.org/doc/647153/
And;
Supreme Court of India
Parimal vs Veena @ Bharti on 8 February, 2011
Bench: P. Sathasivam, B.S. Chauhan
https://indiankanoon.org/doc/602824/
23…However, in case the matter does not fall within the four corners of Order IX, Rule 13 CPC, the court has no jurisdiction to set aside ex-parte
decree.
And;
Bombay High Court
Shri Shivram Dodanna Shetty vs Sou. Sharmila Shivram Shetty on 1 December, 2016
Bench: Naresh H. Patil
1
full bench matter - fca-161-13
https://indiankanoon.org/doc/70905829/
Bombay High Court
Reeta Bharat Arora vs Bharat Yasodanandan Arora @ ... on 13 June, 2001
Author: P Upasani
Bench: T C Das, P Upasani
https://indiankanoon.org/doc/1812333/
Patna High Court
Sri Rajesh Kumar vs Smt. Pushpa Rani on 16 September, 2016
https://indiankanoon.org/doc/48521326/
2…(vi) Thereafter, the petitioner-husband remarried, on 12.05.2013, after the expiry of the period of limitation for filing appeal, as envisaged by Section 28 of the Hindu Marriage Act, 1955, was over. From the marriage, which so took place, two children were born.
51…..10…Does the inhibition for a period indicate that such marriage would be void? While there is a disability for a time suffered by a party from contracting marriage, every such disability does not render the marriage void.
52. In the case at hand, the petitioner-husband solemnized his second marriage only after obtaining a decree of divorce. When he solemnized his second marriage after the decree of divorce, the second marriage, notwithstanding the fact that the ex parte decree of divorce has, now, been set aside, cannot be treated as a nullity.
Kumar Doab
(Expert) 30 August 2018
Mahila Nari Sangh may be a union, NGO etc
While IT may try to approach you or by your discretion may approach again and even may persisit, but cannot force you for any settlement.
If you are being intimidated, coerced, forced, threatened, ……record all such instances and keep irrefutable evidences, unshakable witnesses, for use at appropriate time if the need be , in appropriate form..
Your spouse (Ex) must have informed the union, NGO etc e.g; Mahila Nari Sangh that she was called to appear in court, and thus is aware of case in court!
Pregnancy, termination of pregnancy, continuation of pregnancy, pregnancy delivery, sickness due to pregnancy delivery…..is a medical fact.
If a spouse has communicated to court the fact of pregnancy then the communique is on record of court of law..
If some Medical Specialist/ Gynecologist/ Obstetrician has given medical certificate for pregnancy related sickness and to avoid travelling (to court) then IT is a matter of record..
Since spouse has submitted a communiqué to court then must have recieved summons from court of law and had discretion to appear thru counsel and is aware of ongoing case and can very well monitor the case and even get copy of judgment…
Fegining ignorance of court case (and decree) by some complaiant ( e.g. your spouse as in your query) before a union, NGO etc e.g; Mahila Nari Sangh can be of what significance or consequence, as per you and your own counsel!
IT is felt that; You are neither answerable nor subordinate to a union, NGO etc e.g; Mahila Nari Sangh…and rest you can ask your own very able LOCAL counsel while you go for 2nd , 3rd opinion….about a union, NGO etc e.g; Mahila Nari Sangh, and how to handle the matter so that you are comfortable and out of any limitation period and if you re-marry your marriage is held valid, by court of law, and contentions of OP are defeated in court.
The approach to an outside agency to settle the matter could be a genuine intent to settle the matter and promise not to agitate further.
However once again let your own very able LOCAL counsel advise you, and even draft the settlement for you so as to mind your long term interest.
Or if you are unwilling to settle and are properly informed PIP and well versed with court procedures and are confident to handle the matter on your own, go ahead.
Or proceed further under expert advice of your very able LOCAL counsel as already suggested and prepare to defeat the demands of OP in all future litigations (if any).
