Restitution of conjugal rights case
Querist :
Anonymous
(Querist) 05 January 2019
This query is : Resolved
Can Petitioner or Applicant convert his case
of Sec. 9 filed under Hindu Marriage Act into Sec. 13B of Hindu Marriage Act
in District Court for mutual consent divorce after making an application under Or. 6 R. 17 of CPC
What remedy?
Vijay Raj Mahajan
(Expert) 05 January 2019
No. Fresh petition jointly has to be filled by both parties u/s 13B HMA after withdrawing petition u/s 9 HMA by the spouse who filled it.
Dr J C Vashista
(Expert) 06 January 2019
What is your locus standie ?
Why do you expect obligation of experts as an anonymous author which is against rule of this platform ?
Martin S.
(Expert) 06 January 2019
Let the Section 9 case get over. Then automatically you will get easy divorce. Filing 13b is waste provided wife has agreed for mutual and does not run away with half your money.
Kumar Doab
(Expert) 07 January 2019
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.
Obtain proper legal opinion in writing from LOCAL counsel specializing in concerned field of law.
Kumar Doab
(Expert) 07 January 2019
Your own very able LOCAL counsel is to help and guide you and ascertain what is best for you.
GO thru;
Karnataka High Court
Sri A Ashwin Kumar vs Smt Vidya N Raju on 11 August, 2017
Author: Dr. Vineet Kothari
1/6
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11th DAY OF AUGUST 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.55714/2016 (GM-FC)
11. In the present case also, the husband had initially filed the present petition under sec.9 of the Act. The respondent after having filed memo dated 8-1-2015 that she is ready and willing to join petitioner for leading marital life, then has come up with the present application seeking amendment to the pleadings and relief for seeking decree of divorce. The fact of the present case squarely applies to the principles enunciated in the above referred decision. Therefore, for these reasons, I am of the opinion that the petitioner cannot be permitted to convert the petition filed under sec.9 of the Act into one under sec.13 of the Act. If the amendment is allowed, it will cause prejudice or injustice to the respondent. The prayer for restitution of conjugal rights and decree of divorce are two diametrical opposite prayers and cannot be allowed by way of amendment, as allowing the aforesaid amendment, will also result in change of nature of petition. Consequently point No.1 for determination is answered in negative.
12. Point No.2:- In view of the reasons assigned while dealing with point No.1, I proceed to pass the following:-
Date of Order 11-08-2017 W.P.No.55714/2016 A Ashwin Kumar Vs Smt Vidya N Raju.
ORDER I.A. No.5 filed by petitioner under Order 6 Rule 17 of CPC R/W sec.13 of Hindu Marriage Act is hereby dismissed."
3. Having heard the learned counsel, this Court is satisfied that there is no error in the impugned order. The petition under Articles 226 and 227 of Constitution of India is misconceived and petition is without any merits and same is accordingly dismissed. No costs.
https://indiankanoon.org/doc/163780368/
Kumar Doab
(Expert) 07 January 2019
Allahabad High Court
Smt. Preeti vs Sandeep Asthana on 6 September, 2017
Bench: Dilip Gupta, Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgement reserved on 24 August 2017
Judgement delivered on 6 September 2017
Court No. - 39
Case :- FIRST APPEAL No. - 605 of 2017
The short point that has arisen for consideration in this appeal is whether a case filed under section 9 of the Act for restitution of conjugal rights by a party can be permitted to be converted to one having been filed under section 13 of the Act by allowing the amendment application moved under Order 6 Rule 17 CPC.
It has, therefore, to be seen whether such an amendment can be permitted under Order 6 Rule 17 CPC as the same is diametrically opposite to the restoration of conjugal rights.
The other issue is as to whether the amendment was necessary for proper adjudication of the dispute between the parties. In this regard it seems that the husband had instituted a case for restitution of conjugal rights believing that his wife would come back as she had left the matrimonial home without any valid reasons, but when the wife became more aggressive since she filed a criminal case against the husband and his family members, it dawned upon the respondent that his wife probably never wanted to return to her matrimonial home and wanted to torture not only him but his whole family. It is then that the husband thought it proper to get the case of restitution of conjugal rights converted into that of divorce on the ground of cruelty. The divorce on the ground of cruelty does not require separation between spouses for more than 2 years. However, two years separation would be valid only if desertion was the only ground for divorce. In case the divorce on the ground of cruelty is prayed for, only one year period since the date of marriage would make the petition for divorce competent.
It is also worth mentioning here that the said amendment does not seem to cause any prejudice to the wife, because firstly she has not filed any written statement till date and she would still have an opportunity to meet the allegations made by the husband in the amended plaint. It may also be mentioned that to avoid multiplicity of suits, the amendment was required. It may further be mentioned that when alternative reliefs can be prayed for, conversion of one relief into another would not be barred.
In view of the above, the impugned order does not suffer from any infirmity except that the amendment shall be effective from the date of its being allowed by the Court below and it will not relate back to the date of institution of the petition.
This appeal, therefore, deserves to be dismissed at the stage of admission itself with the above observation. It is, accordingly, dismissed. Let a copy of this order be transmitted to the Court below.
Order Date:06.09.2017 AU (Dilip Gupta J) (Dinesh Kumar Singh - I J)
https://indiankanoon.org/doc/66510547/
Kumar Doab
(Expert) 07 January 2019
You may take help for any matter from, elders of your family, competent and experienced well wishers, seasoned PIP’s, helpgroups, community leaders, NGO’s, experienced colleagues, associations, religious scholars/leaders, influential persons, Employee’s/Trade union leaders, help groups for spouses (Husband/wife) etc and find a very able LOCAL counsel specializing in concerned filed of law e.g; Family/Civil matters as in your case, and well versed with LOCAL applicable rules, precedence, latest judgments etc …. and worth his/her salt, can advise you after examining all case related docs, inputs, evidences on record.
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