How to calculate the period of desertion
Rajan
(Querist) 08 April 2013
This query is : Resolved
Dear Sirs,
I am posting this query for your advice
PLEASE IGNORE MY EARLIER QUERY ON THE SAME SUBJECT AS MY QUERY WAS REPEATED 4 TIMES ON THE SAME PAGE DUE TO INTERNET CONNECTION PROBLEMS
I am a Party - in - Person
I have applied for divorce on January 2001 (prior to the amendment of the Divorce ACT 1869) on the grounds of adultery based on the documentary material evidence..... Filed petition on adultery (only grounds available) under Divorce Act 1869 -- petition filed after 13 months of desertion
Marriage date: 03.09.1999
Deserted by wife: 21.12.1999
Filed petition on: 28.01.2001
After the amendment of the divorce act in 2001 (WEF October 2001), I applied for amendment of the petition to include creulty and desertion (as this clause was not available earlier during my presentaion of the petition), amendment petition filed under Order 6 rule 17 and CPC 151 .......Filed amendment petition after many grounds were made available in Divorce act 1869 amend 2001 added the grounds desertion and cruelty -- filed amendment after 7 years and 10 months
amendment filed on 26.1.2006
The amendment Sec 10 reads .... has deserted the petitioner for atleast 2 years immeadetly preceeding the presentation of the petition
So kindly advice if my petition filed on desertion shall qualify the Sec 10 as grounds were included and presentation of the pettition after 7 years of desertion
OR
will the grounds of desertion be treated as void as the main petition on adultery was presented after 13 months of desertion ... and amendment for grounds on desertion was taken after 7 years --- but still consider that the petition was presented after 13 months so that it shall not qualify Sec 10 amendment
Kindly advice and thanks for your advice
Devajyoti Barman
(Expert) 08 April 2013
Once amendment is allowed it is treated as if it has been mentioned in the original petition.
This is called principle of ' Relation Back'.
Raj Kumar Makkad
(Expert) 08 April 2013
This is your repeated query whereas the earlier has already been duly replied.
Rajan
(Querist) 09 April 2013
Dear Sirs,
thank you for your kind advice. the amendment was applied as the same clause was not available in the act at the time of petition and subsequently the amendment in Oct 2001 provided these amendent. Will it still be allowed on the relation back principle eventhough that the act doesnt allow such clause while filing the main petition
prabhakar singh
(Expert) 09 April 2013
The amendment in petition would be treated
with effect from date the right so recognised came into force by the implementation of the amended statute.
By the way you have not told under which law your marriage was performed?
Rajan
(Querist) 09 April 2013
Dear Sirs,
Thank you for your valid advice
Dear Prabhakar Sir,
Marriage was conducted in christian religion ceremony and divorce filed under the Indian Divorce Act 1869 amend 2001.
When I presented the petition under Sec 10 of IDA 1869, the only grounds was adultery.
However after 11 months of my presentation of the petition, the amendement under 42 of 2001 came into effect from 31.10.2001, and subsequently after closing all the pending IA, I presented my amendment petition for inclusion of the amended Sec 10 of IDA 1869 amend 2001.
Now since there exisited a doubt as Sec 10 reads that the petition can be presented for atleast 2 years immeadetly preceeding the presentation of the petition
on desertation.
Adv k . mahesh
(Expert) 09 April 2013
when every you apply the amendment petition they will take into consideration at final arguments
