Need Sound Counsel
Querist :
Anonymous
(Querist) 23 January 2011
This query is : Open
A petition is "allegedly" by a lady in Family Court seeking Divorce from her husband on the ground of cruelty under section 13(1)(ia) of the HMA.
Subsequently, 3 months later, a Memorandum of Compromise was "allegedly" filed by both parties under Order 23 Rule 3 CPC.
 On the basis of this, original petition was allowed on same day and an Order granting Divorce by Mutual Consent was recorded under Section 13 B of the HMA was passed
 The compromise provided for alleged agreement between parties, viz;
a)Divorce shall be granted.
b)The lady will not have any claim against her husband for her Maintenance.
c)She should not have any claim over the property of husband, and,
d)She will not have any claim over the custody of her children.
 It was only 3 months after divorce order that the lady came to know about this fraud played upon her only. The same can be understood from the fact that till then she was residing in the house her husband unaware of the fact that the a Divorce Decree has already been passed. There are several proofs supporting the same.
Immediately the lady files a suit which is a suit seeking to declare the Divorce Decree as null & void on the following grounds :
1.That the "alleged" original petition and Memorandum of Compromise have been actuated by fraud and coercion by her husband by threatening her.
2.That NONE of the provisions of a mutual consent divorce have been adhered to and the Order of Divorce is not in conformity with the mandatory provisions of section 13B
3.The divorce pronounced merely on the basis of a Memorandum of Compromise filed under Order 23 Rule 3 CPC.
4.No Decree of divorce can be granted under Order 23 Rule 3 CPC of HMA otherwise the very purpose of enacting a law under Section 13 B of the Hindu Marriage Act is lost.
5. Several recent Supreme court judgments have been citied which have come down heavily on Family courts for waiving of provisions of Sec13(b) very freely.
I would, as a student of law, like to get perspectives from the learned members of this community on the
A). Quality of judgment as well as following a due process by the Family Court.
B). Legal strength of the position taken by the lady now.
C) Is there a provision in the law which the lady can take help of for remedying this gross tragedy?
Regards
