Srini 2009 (asdasdasd) 18 November 2008

Divorce Case Help

Hi,

Initially I filed RCR petiton against my wife and as it is running for years, I have withdrawn that case and filed for Divorce . In the first appearance itself, as my wife had not appeared before the court, the judge granted an Exparte-Divorce decree. The appeal period of 90 days had also completed.

Now I received a summons from the court that my wife filed a petiton for Divorce,Maintenance and Recovery of Dowry articals(section 27 of HMA) all in one petition. In the summons it is observed that she filed the divorce case before I filed, but I got the notice now to appear before the court.

Howfar the Divorce decree which I have got is valid now? Do I need to contest the case filed by her and ... also the fact is no dowry articals were retained by me. Also 125 crpc case for maintenance is going on in another city where she actually resides now.

Now she filed this Divorce suit in another city saying that she is residing there now, but actually she is residing at her earlier place(where 125 crpc is running) and doing a job. But I don't have a proof for her residence.

Please let me know how far this case is valid and what steps should I take now.

Can I accept the Divorce in that petition and contest for remaining two prayers?

Also in the meantime,as the 90 days appeal period is over, based on the exparte decree I applied in passport office to remove her name from my passport. Is there any problem with this now?

Thanks in advance,

Venky

Reply Follow

6 Replies

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 18 November 2008

YES U CAN ACCEPT THE CASE. NO NEED TO CONTEST THE CASE. U CAN SHOW THE EX-PARTE DECREE OF DIVORCE IN THE COURT. U CAN ALSO SHOW THE CERTIFY COPY OF THAT MAINTAINANCE PETITION, WHICH IS PENDING IN THE OTHER COURT. EVEN U CAN SHOW THE PROOF, IF U HAVE, THAT U HAD NOT TAKEN EVEN A SINGLE THING AS DOWRY ARTICLE. U WILL HAVE TO MENTION ALL THESE FACTS IN THE WRITTEN STATEMENT IN THE PRESENT CASE.

FOR MORE QUERRIES U CAN CONTACT ME AT

rakhibudhiraja@gmail.com

Cell no-9871158578/9711364956

K.C.Suresh (Advocate) 18 November 2008

But Rakhi he has to contest the case after the writren statement isn't it?.

Vijay Raj Mahajan (Advocate) 19 November 2008

One marriage can be dissolved only once & this happened in your case, the Ex-Parte decree of divorce is sufficient proof of the marriage being dissolved, attach the certified copy of the order & decree of divorce for the other family court where your wife the petition for divorce in another city to dismiss her petition of divorce. As far the Application under section 27 of the Hindu Marriage Act, 1955 is concerned that application too get dismissed with her petition for divorce as that related to disposal of property, in any proceeding under the Act, where the court make such provisions in the decree as it deems just & proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband & the wife. Here firstly there is a decree of divorce already passed by a competent court & it has not been challenged in Appeal by the respondent wife. In this decree no order was passed by the court with regard to the disposal of joint property as there was no such application made by the respondent/wife during the proceedings in the case. Secondly this provision of disposal of property is with regard to jointly owned property not individually owned property, the dowry articles consisting of her jewellary, clothes, etc are not jointly owned property & it cannot be claimed under this provision of the Act. Thirdly, the application U/S 27 of HMA is interlocutory in nature & it comes to end as the main petition get disposed off, once her main petition for divorce is disposed off this application U/S 27 HMA get disposed off as dismissed with no order. There is a similar situation for her application under section 24 of HMA with regard to Maintenance & expenses during pendency of proceedings which too is interlocutory in nature get dismissed along with her main petition for divorce. The only application which can be heard & disposed off even after you have got divorce is one filled by her under section 25 HMA with regard to Permanent alimony & maintenance. This application will be disposed off even after the decree of divorce being passed by the competent court as in your case. You can defend this application. As far the question of Permanent Maintenance it can be paid on lump sum basis or on monthly basis, how you want to settle this issue you have to see. As far getting monthly maintenance under section 125 Criminal Procedure Code is concerned that the wife can get only one monthly maintenance either under this provision of law or under section 25 HMA where if a lump sum amount is agreed & given by you the petition under section 125 Cr.P.C also get dismissed. Hope all your legal quires get answered now.