Fighting for justice and truth

@Tajobsindia.  Are there any instances in your experience where one of the parties, say husband, to a divorce case alleged that "I was given divorce by court, my wife didn't get it so she is not eligible to remarry", when his divorce petition was not contested? Is it deemed that if a divorce is given to one party the other party is automatically beneficiary of the same? Any case law to that effect?

 @ Chandrasekhar,

Your que. is faulty. Suggest to re-read it first then re-phrase it then I may answer accordingly.

Come on man!  What is faulty in it?  I am asking a simple question. Let me put it this way. The husband has applied for a contested divorce petition.  He made allegations against wife, numbering 15.  The wife did not contest those allegations.  Suppose it is declared exparte against wife.  Husband got the decree of divorce from court. Wife remarries after a few days.  Husband makes allegation...."I am the one who is given decree of divorce by court because I contested for it.  She did not contest for it, nor she asked nor she received decree of divorce.  So she is not eligible to remarry, if she marries it becomes bigamy". 

The question is does that allegation hold water?

Another question.  Husband made several allegations against wife in a contested divorce petition. Wife rebuts all those allegations as false.  But finally says in her Written Statement, "I am only contesting his allegations, not his Divorce petition, as I am hurt by his allegations, I no more want to be his wife, and so the divorce may be granted by court".  What will be reaction of Court for this?  Will it grant divorce or, direct both of them to file joint petition for MCD? 

While experienced professionals are discussing in this forum i came across this wordings by Adv. Chandrasekhar if i am not wrong then what it means if one party files divorce and obtains exparty decision is free from marriage but while the opposition against whom exparty divorce is obtained is not free from marriage

Does this mean that opposition have to go in the court and obtain his or her own exparty decision ? else they might invite bigamy...........i do not know if this is a law or court procedure but what i was assuming and what i have seen so far is any exparty decisions which are held against opposition party which are not contested within the GIVEN PERIOD are to be considered final decision for both the parties.

If there is new rule or law please try to post such similar judgements so that we can know about this........also please make sure it has to be divorce related judgements and not any other civil lawsuit litigation where contesting period is open for the opposition.

Hi Tajobs,

You are too emotional like a Hari Mirchi man!  Contested divorce simply means a divorce which is not a MCD.  That is all I mean by it.  Every advocate uses that phrase not only me to convey a meaning that the divorce he applied for is not a MCD.  OK.  I got your point anyway but just assume it is just a matter of convenience for me to make people understand what kind of petition it is.  When so many advocates use the phrase “contested divorce” for all divorces other than MCD may be they are not stupid. One of the reasons is the husband tried for convincing wife for MCD as she did not accept for MCD he applied for divorce and hence there remains a presumption that she will contest for it.  That is why in practice all petitions other than MCD are called “contested divorce”.  If later wife decides not to contest that is a different issue.  However as far as advocates are concerned as MCD proposal is not accepted by wife, whatever petition husband files is a “contested divorce”.  Coming to a different point….

I understood that only if a wife contests it becomes a contested divorce otherwise it is not.  Why does a wife contest the divorce petition of a husband?  Because she does not want to accept his divorce proposal.  So she says all the allegations he made are wrong, I am a good person, and so he is not eligible for divorce.  A court does not grant divorce because it finds that husband has not convinced the court that grounds are there for divorce.  But husband does not take the wife back despite the fact that court did not find his averments/allegations about wife true.  So the court grants maintenance to wife on application because the husband despite being false in his allegations is not taking back his wife into his family and so naturally the wife is eligible for maintenance.   In layman’s words, husband found guilty of making false allegations and found irresponsible and hence he is made to pay maintenance by court. 

Let us come to second point/possibility.  Husband made allegations against wife.  Wife defended with a written statement.  Court found that the wife’s rebuttal has no strength.  Husband is found to be true in all his allegations by the court.  So Court decides he is eligible for divorce.  But in such scenario wife is eligible for maintenance?  Court found the wife guilty and husband has substantially proved the allegations he made against wife are true and court found sufficient grounds to grant divorce to him.  Wife is at mistake this time.  So she is eligible for maintenance?  This question arises because, she is at fault not he.  If she had been a good wife, he would have kept her at home.  But it is found by court that she is not a good wife.  And court decided to grant divorce to husband because she is not a good wife to him.  Whether she accepts or not is not an issue for court once it finds the wife guilty of allegations made by husband.  Courts may be granting maintenance to wives even if the husband’s allegations are found to be true (allegations other than adultery) by court and even if court decides to grant divorce on finding sufficient grounds to grant divorce.  That is a different issue.  But the issue of whether a wife who is found guilty by court is eligible for maintenance is a good point of debate. 

Also the issue of whether a wife who did not want divorce is eligible to remarry on a husband being given divorce.  The court found substance in the allegations made by husband and it decided to give freedom from marital relationship so granted a divorce to him.  What about wife?  I am not saying she is not eligible to remarry.  I am only raising the issue of following some legal formalities.  Court should convey the decision to wife that it wants to grant divorce to him.  And ask her “If you agree the Court can grant divorce to you as well in such case you lose the right to appeal in a higher forum.  Whether you want to avail this opportunity to get decree of divorce along with him?”  Wife says yes.  Court should grant divorce to her and both the parties lose their right to appeal in a higher forum. This will prevent the possibility of when an appeal is won by the wife in a higher forum and in the meanwhile based on the lower court decision if husband remarries his re-marriage becoming null and void.

Suppose wife says no.  Then court shall give time to her to appeal in a higher forum or if such time is already there in statue books, it should be availed by wife failing which she loses the right to challenge the decision of lower court.  But technically she has not yet obtained divorce from court as long as she keeps the option of appeal in higher forum open or till it is exhausted by passage of time.  After the passage of time, she should apply for divorce in lower court agreeing to take divorce and take divorce decree in her name too.  So technically till she obtains the decree of divorce in her name and keeps her option to appeal in higher forum open she is not eligible to remarry.  This is aimed at helping the woman who marries the person/man who obtained a divorce because for no fault of hers her marriage will become null and void if the appeal of wife in the above-referred petition is allowed by higher forum.

Now let us come to third possibility which is related to my second question. 

It is not that in a mutual consent divorce there won’t be allegations and issues to be raised by husband and wife.  But they put all those issues in cold storage and apply for mutual consent divorce without giving scope for the Court to adjudicate on their issues.  That means their allegations remain among themselves and not become public.  But I found one case where husband and wife in the presence of elders entered into one MOU which contains one of the points as filing MCD.  Later the husband did not apply for MCD instead applied for Divorce and made several allegations against wife with a view to tarnish her image in society.  He went back on the point of MCD which he agreed in MOU because he felt later that his wife shall by punished by way of losing image in the eyes of society and so the best way he found was to go for a contested divorce.  Wife never said she will contest she was always prepared for MCD.

But she was forced to contest.  Her position was such that she wants divorce too, but she is not in a position to accept his allegations and she was in a need to rebut.  But rebuttal happens generally only with the intention to contest the claim of divorce.  However there is nothing that a wife cannot plead in a petition.  Does any law prevent if wife says, “I rebut all the allegations the husband made but as I am hurt by his allegations I do not want to be his wife”?  

Mutual consent divorce does not mean there are no allegations to make by husband and wife against each other.  It only means they agreed up on the point of divorce and consented mutually to go for it.  It means only on the point of divorce there is agreement but on rest of the points there is no agreement, and hence if there is a petition of divorce naturally there will be contest/rebuttal on other points.  Mutual consent divorce averts the possibility of contest it does not mean there is no possibility of contest.  Hence if a contest is there on allegations but agreement is there on the point of divorce such litigation has all the characteristics of a mutual consent divorce.

Therefore the court should consider it as a mutual consent divorce only if husband and wife (for any reason) contested on the issue of allegations but agreed on the point of divorce, and there is no point in again sending it for mediation and considering whether the grounds on which husband filed for divorce are valid enough to grant him a divorce or not.   One more reason why I say this is, if the court adjudicates on the grounds whether they are valid grounds to grant him divorce or not, and finds that the wife had sufficiently rebutted his allegations it cannot grant divorce on those grounds.  But the larger point is both husband and wife have agreed for divorce whatever may be the allegations they have to make against each other.  Only in a mutual consent divorce it is not necessary for the court to adjudicate on allegations.  It is because both the husband and wife have mutually agreed for divorce.  Supposing husband filed for divorce under Section 13 (1) (i) to (vii), it becomes the duty of court to call for the defense of wife and adjudicate on the grounds if wife expresses her desire to contest the petition with an intention to keep the marital relationship alive.  Otherwise though a contest is there it is a mutual consent divorce only if wife and husband both agree on the point of divorce.  And hence there is no need for the court to adjudicate on the allegations made by husband or wife in such case though allegations are made.

The essay looks nice when written on papers and with lot of probabilities hereby we all agree that exparty divorce not contested by opposition (HUSBAND OR WIFE) is considered divorce and hence question of bigamy occurence does not exist (DNE).

@ Chandrasekhar,


Take on your Ist. para – Tell readers how many husbands statistically have ever asked their wife for MCD before filing proper Divorce suit? I would say in ground reality actually none.



Take on your IInd. para – Another of your bald hypothesis stating ‘court grants maint.” brother the provision as per S. 24 HMA states “it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable” and not what you so cleverly summed up on grant of maint. Show to readers one citation from SC and or your own State HC’s where either of the Courts summed up (your last sentence) as you making up here so cleverly.

Take on your IIIrd. para – Regaring wife found to be eligiable for maint. under guilty verdict other than ‘adultery situations’ as in a debate I am not interested right now especially with your kind of faulty logics.


Take on your IVth. para – Once Court grants divorce and decree sheet is prepared in presented para logics basis why should Court send a special envoy to wife’s door and plead her with arti – tikka – garland to come to same Court to receive special golden framed decree sheet? A decree sheet is valid for both parties to a divorce suit unless challenged / re-opened on appeal grounds then available and those appeal grounds could be raised under “misrepresentation - fraud – lack of knowledge of such live proceedings – technical – jurisdiction issues etc. based” and not on what you are misguiding readers with. Why shall a husband appeal to higher forum on his own decree – ever ask that too while mentioning such large faulty para as reply. After so –called appeal the marriage of husband does not become null and void as in his life there is a second wife and all Courts have till date protected best interest of a re-married husband’s second wife after all appeal period were exhausted. Show to readers one citation from SC and or your own State HC’s where either of the Courts summed up (your last sentence) as you making up here so cleverly.

Take on your Vth. para – The Appeal period limitation is 90 days for regular appeal grounds and under ‘fraud’ the limitation is 99 years as per Limitation Act. So you are saying before us that technically for next 99 years a husband cannot re-marry as the decree was also not given to a wife! Maharaj I should not debate with you any more and kindly accept my humble sashtang pranam to your line of fluid logics.


Take on your VIth. para – No further rejoinder other than copy – paste last sentence from above fifth para needed here.

Take on your VIIth. para – No further rejoinder needed here as your logics under this para are beyond my comprehension.

Take on your VIIIth. para - No further rejoinder needed here as your logics under this para are beyond my comprehension.

Under traditional fault grounds which are practiced more in countries following common laws such as India, one spouse could defeat the claims of fault by the other spouse by raising certain defenses. Under a no-fault system, one could still litigate or argue in court the others divorce claims, but the traditional defenses do not apply which is not the case in hand over here in India. A divorce that is argued over is called a contested divorce; one that is not argued is called uncontested divorce. In an uncontested divorce, the final judgment is entered without a trial. What my other ld. advocate brothers call and donot call a divorce is not my cup of tea to correct them colly., I go by my clear understanding of Laws and donot take shelter over my larger conclave of ld. brothers here to substantiate a point as a brownie point over and or under their shoulders PERIOD J

Actually, there still are defenses to divorce, in Indian context which recognize "fault divorce". The 3 C’s - collusion, condonation, connivance, - as well as provocation, and the counterattack called recrimination. At one time, any of the 3 C’s would have been an adequate defense against an allegation of adultery and now I know why you put in your faulty logic blender 'adultery as well as bigamy with which you started rebutals - see your first posting!' it is just to confuse one such reader ref. @ Victim’s first concern post made out to you ha ha.

To sum up your above large piece of faulty logics I would say you are swimming in a darkly comical way using self made civil marriage theories of 'recrimination'. Interestingly enough, the idea of recrimination is being revived by you here as made to understand reading so many of your large piece of faulty logics till date which favours abalas and not prudent husbands for seeking divorce either as a defendant or as a petitioning husband(s). You are reviving via back-door entry to make believe laymen readers here with your faulty logics that divorce is too easily gotten these days by husbands especially in scenarios falling under ex-party, and is too prevalent culturally, and so you are grasping at anything that would make divorce more difficult to obtain for husbands with such logics of 99 years for a wife to re-open a open and then shut case are illustration sof your own faulty logics before us.

Well that was some Naga Jolokia discussion that we engaged each other on!


PS: I am leaving this discussion open others to talk to your kind self. Reason being I am all written up and over exceeding self - alloted bandwiddth and not want of debate grounds per se. We will meet each other on same platform on some other of your pet topics any of these days !

   Take on your IInd. para – Another of your bald hypothesis stating ‘court grants maint.” brother the provision as per S. 24 HMA states “it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable” and not what you so cleverly summed up on grant of maint. Show to readers one citation from SC and or your own State HC’s where either of the Courts summed up (your last sentence) as you making up here so cleverly.

S. 24 of HMA is about alimony pendente lite that is a situation where the court has not yet decided on the merits of case.  Hence it cannot keep one of the spouses starving (you are aware both husband and wife are eligible to claim maintenance) and so the court grants maintenance to one of the spouses who has no independent income sufficient for his or her support.  This has nothing to do with the final decision with regard to the merits of the divorce petition.  You are stating the existing position, I am discussing the jurisprudence behind the logic of granting maintenance to an erring spouse.  I wish you will understand and frame the issues here properly.  The issue here is not “whether during the pendency of litigation whether the spouse that is not having sufficient income is eligible for maintenance or not”.  The issue here is, “whether the spouse that is at fault or found to be at fault by court is eligible for maintenance”.   I am talking about the maintenance that is granted after court decides on the merits of the case and you are referring about maintenance pendente lite.

Take on your IVth. para – Once Court grants divorce and decree sheet is prepared in presented para logics basis why should Court send a special envoy to wife’s door and plead her with arti – tikka – garland to come to same Court to receive special golden framed decree sheet? A decree sheet is valid for both parties to a divorce suit unless challenged / re-opened on appeal grounds then available and those appeal grounds could be raised under “misrepresentation - fraud – lack of knowledge of such live proceedings – technical – jurisdiction issues etc. based” and not on what you are misguiding readers with. Why shall a husband appeal to higher forum on his own decree – ever ask that too while mentioning such large faulty para as reply. After so –called appeal the marriage of husband does not become null and void as in his life there is a second wife and all Courts have till date protected best interest of a re-married husband’s second wife after all appeal period were exhausted. Show to readers one citation from SC and or your own State HC’s where either of the Courts summed up (your last sentence) as you making up here so cleverly.

Citation:

Chandra Mohini v. Avinash Parshad, AIR 1967 SC 581: 1967 AII LJ 167: (1967) 1 SCR 864: 1967 (1) SCWR 907

It is said that though S.15 of HMA does not apply to a case of an application for special leave to appeal to the Supreme Court, the remarrying of the person after obtaining the decree of divorce cannot take away the right of the losing party a chance of presenting an application for special leave but if a party goes for remarriage before application for leave is dismissed, it runs the risk of decree of divorce being dismissed and re-marriage may become a nullity.

Refer also: Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839: JT 1988 (1) SC 395

Why shall a husband appeal to higher forum on his own decree?

I have not said whether it is husband or wife’s problem.  I have discussed the issue using an example of a husband getting divorce decree.  And even there I did not say, the husband appeal to higher forum on his own decree.  It seems you have not read my points properly.  I said if a husband gets a divorce decree then the wife should be told about the decision of court about granting divorce to husband and be queried whether she is interested to obtain divorce along with him or she will reserve her time for an appeal to higher forum.  So I was referring about the losing party’s appeal to higher forum whereas you have understood as the winning party appealing to higher forum. 

What I am saying here is the losing party had not contested for divorce, it has contested the allegations made by a petitioner seeking divorce.  The losing party did not say he/she wants a divorce in the end.  The losing party denied allegations made by the winning party with an intention to keep the marital life in tact.  Later if the winning party is given divorce, the losing party has either the option to remarry (under existing provisions), or if she is not able to find a proper match, the losing party can pass time filing one appeal to higher forum.  I am saying that should be avoided because that kind of freedom to losing parties will create opportunists because first of all the losing party did not want the break-up of marriage in the first place.  But it has freedom to marry on the basis of divorce given to winning party.  And also the freedom to file an appeal in higher forum if he/she does not get a proper match to harass the winning party if he/she remarries with a feeling of revenge that I could not marry but he/she got married why will I allow him/her to live in peace when I can appeal?

The losing party should be forced to make his/her stand clear whether he/she wants a divorce if he/she loses the divorce petition and court decides to grant divorce to winning party.  Divorce should be granted in the names of husband and wife.  A decree to the winning party should be given only in the name of winning party and the losing party wants a divorce decree he/she should apply and file an affidavit that “he/she too wants divorce”.  As the losing party also declared that he/she wants a divorce and filed affidavit to that effect he/she loses the right to appeal in the higher forum. 

That will do complete justice to winning party.  And it also does justice to the person he/she marries who enters into marital relationship with an innocent view that he has a valid divorce from lower court and there is no possibility of his or her marriage becoming null and void.