Need divorce asap
payel
(Querist) 22 March 2013
This query is : Resolved
hello all..i am a regular writer in this club..i do so coz am totally confused abut my state of divorce..i had filed a mutual divorce but my ex husband nulified it ..now for the last 2 years am going thru a contested divorce..
i would like to state that my mistake was insted of several verbal and physical abuses from my husband i did nt file one case or complaint against him and he is utilising this ..
he is stating various reasons for not givign me a divorce and me a great fool do not have enuf evidence to prove it except verbal truths from some close people who have witnissed this..
my question is after so many days can i go ahead and file any complaint against him and will it be considered valid or what evidence can i produce to prove that i was gone thru physical and mental violence..
he is forcing me to sign papers for a joint property but i dont want to sign it..what would be my next steps? how wud and can go ahead and prove my points correct in teh court? what can i do to produce the evidence?
moroever if i dont give proper evidence can the divorce be declared null and void and i be forced to live with him only for the lack of evidence??
Advocate M.Bhadra
(Expert) 22 March 2013
As a petitioner you have to prove,but evidence may circumstantial in matrimonial relation during the wedlock.
You may read over the following comments on mutual divorce.
The ORIGINAL ARTICLE FROM legalblog.in
The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.
In the case of Sureshta Devi (supra.), this Court took the view: "9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce." On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:
From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."
payel
(Querist) 22 March 2013
sir i meant that i had tried to go through a mutual divorce but my husband didnt sign the papers and hence i am going thru a contested divorce my other querries remain teh same..
i would like to state that my mistake was insted of several verbal and physical abuses from my husband i did nt file one case or complaint against him and he is utilising this ..
he is stating various reasons for not givign me a divorce and me a great fool do not have enuf evidence to prove it except verbal truths from some close people who have witnissed this..
my question is after so many days can i go ahead and file any complaint against him and will it be considered valid or what evidence can i produce to prove that i was gone thru physical and mental violence..
he is forcing me to sign papers for a joint property but i dont want to sign it..what would be my next steps? how wud and can go ahead and prove my points correct in teh court? what can i do to produce the evidence?
Devajyoti Barman
(Expert) 22 March 2013
File case under PWDV Act or u/s 498A IPC.
Advocate M.Bhadra
(Expert) 22 March 2013
QUERY BY PAYAL:
"hello all..i am a regular writer in this club..i do so coz am totally confused abut my state of divorce..i had filed a mutual divorce but my ex husband nulified it ..now for the last 2 years am going thru a contested divorce.."
How can we proper advise?
