What if respondent is not ready for reconciliation at final stage of divorce case?
Guest
(Querist) 26 October 2014
This query is : Resolved
I'm contesting the divorce petition filed by wife on ground of impotency, non-consummation and mental cruelty,HMA Sec. 13(1), for last six years. I had filed RCR and both cases were running together. After one year, on her divorce petition, I filed application for my potency test by medical board which was allowed by the court after three years and the test report came in my favor. I did withdraw my RCR when the court allowed my application for my potency test but before completing the checkup and getting the medical report. I did so because I was ready to forgive and to take her back at the beginning, but going for potency test was beyond the limits.
Now, during my cross her advocate asked me whether I am ready to take her back for which my answer was simple NO. So, her advocate reminded the Judge that I had filed RCR for which I also informed the Judge that I had withdrawn RCR the moment I decided not to take her back based on the changed situation and her persistence on impotency allegation even after four years, which forced me to go for potency test.
Her advocate also told the Judge that she is ready for mutual divorce without any demands, but I refused it and told the Judge that since the allegation is impotency and she has also filed objection on medical report saying the medical examination is incomplete and chances of relative impotency, the court judgement is necessary for my future life and to avoid social stigma.
So, please help me to clear the following points.
1) Can judge allow her divorce petition just because I'm not ready to take her back and also not ready for mutual divorce, so counting both as mental cruelty towards her?
2)Should it be considered that I was ready to take her back and also had filed RCR which was in force four years during which she did not take any positive steps to come back?
3)she raised false impotency allegation against me and dragged the case without even filing application for my potency test from her side, and at last, I had to file application for my potency and obtain medical report in my favor. Is it enough mental cruelty toward me to withdraw RCR?
4) Is there any provision in law that, in a divorce case, if respondent is not ready to take the petitioner back, which gives the court the power to allow divorce petition without considering the other situations/grounds? I mean anything like irretrievable breakdown of marriage applicable in Family court / High Court.
Anirudh
(Expert) 26 October 2014
What do you expect?
You do not want to take her back.
When you do not want to take her back will not the court grant divorce to the petitioner?
Guest
(Querist) 26 October 2014
@Anirudh
I want to get her divorce petition which contains impotency allegation dismissed, and later file for divorce from my side on ground of mental cruelty arising out of false impotency allegation.
After withdrawing RCR, I wanted to amend my present counter to include mental cruelty asking for divorce as counter relief, but my advocate told me that its better to file fresh divorce petition from my side on ground of mental cruelty once I get her divorce petition dismissed.
Anirudh
(Expert) 26 October 2014
You cannot set the rules.
The divorce petition is already there. That will be first decided. Since you are not ready to take her back, the court will have no option but to grant her the divorce.
Once divorce is granted, you are no more husband and wife. Therefore, thereafter filing any divorce petition by you simply does not arise.
Guest
(Querist) 26 October 2014
@Anirudh
Ok. The divorce petition is on HMA 13(1). So, on which ground can the court give divorce?
Anirudh
(Expert) 26 October 2014
I am not privy to the contents of the entire divorce petition. In any case, you will come to know the ground on which the divorce gets granted when the petition gets allowed.
Guest
(Querist) 26 October 2014
@Anirudh
Lets wait for other learned experts opinion also..
Anirudh
(Expert) 26 October 2014
Yes. That goes without saying.
Guest
(Querist) 27 October 2014
Please advise.
Devajyoti Barman
(Expert) 27 October 2014
1. No
2. No. RCR has nothing to do with this case.
3.yes
4.No
malipeddi jaggarao
(Expert) 29 October 2014
I agree with the advice of expert Mr.Anirudh:
"You cannot set the rules.
The divorce petition is already there. That will be first decided. Since you are not ready to take her back, the court will have no option but to grant her the divorce.".
Simply because on one point that your potency is proved, you cannot set the rules in your favour.
Guest
(Querist) 29 October 2014
"Since you are not ready to take her back, the court will have no option but to grant her the divorce."
How is it possible? If possible,on which ground the court can give the divorce? Can judge simply state in judgement that the respondent is not ready to live with wife so the divorce is granted?
Her allegations are impotency and mental cruelty, and if she fails to prove both, can court allow divorce just because i am not ready to take her back?
T. Kalaiselvan, Advocate
(Expert) 29 October 2014
@Author: You have a point to ask and get clarified. Your question is appreciable. I want to know that whether you have already filed a counter to her petition and denied ll her allegations?, if not doe so far, you may better file a strong counter to her divorce petition denying all those allegations which have been falsely made against you. You have all the rights to mention in the counter asking her to prove her allegations. Further you can make a counter claim seeking divorce from her on the grounds of mental agony and cruelty evidencing her divorce suit with false allegations.
This way she will be made liable to prove her allegations about your potency or any other issue.
In your counter claim, you can finally add that you are ready to accept her prayer seeking dissolution of marriage by a decree of divorce provided she withdraws her false allegations and the decree is passed in general terms.
Consult with your lawyer about all the possibilities and take further decisions.
