Naresh (In search of job) 04 March 2010

Query related to HMA sec13(1)(1-a) and 12(1)(a)

Dear members,

Please through some light on the following circumstances...

Suppose if the husband files a divorce petition u/s 13(1)(1-a) on cruelty grounds, and then if the wife files a counter saying he is an impotent and also seeks a divorce on the cruelty grounds. If I understand correctly then she is essentially taking advantage of the husband's first divorce petition to extort huge amounts as maintainance u/s 13(1)(1-a). Here, though she also wants to get rid of husband but waited or rather forced husband to file for divorce and then on his grounds she is praying for the maintanance.

If her allegations were to be true, she first would have filed for a divorce u/s 12(1)(a), actually it is the pray for the voidable marriage under impotency grounds. In this case she is not entitled to any maintainance, as it is a voidable marriage.

In these circumstances, what the husband can do to counter her wish of looting money.

(1) Can he ask (or bring to the notice of ) the court, that her prayer amounts to voidable marriage and under voidable marriage, she is not entitled for any maintanance? She filed maitanance u/s 24 HMA?

(2) She is claiming in her counter petition to the husband's divorce petition that she is subjected to biological cruelty (lack of s*x) due to husband's impotency. Can this be defined as a cruelty at all? Since, she is claiming that husband is impotent, then where is the cruelty involved here? The law has a provision for her to take divorce under impotency and voidable marriages. Is this a valid point? Is there any judgement like wife can't seek maintainance under these circumstances, since she can't bring (mix) both impotency and cruelty together?

(3) If the husband is potent, is her divorce as well as maintainance are not maintainable? If in the counter to the maintainance petition u/s 24 HMA, if husband provides proves for his potency, then will the court consider this fact and reject her petition?

(4) If the husband can't submit any proof, as doctors would issue such certificate only under the court direction, then court would grant her interim maintainance until the pendency of the litigation, so this is the loophole in law, she would want to extract money, and since courts normally grant from the date of petition, then it will be real big money? Is there something husband can do to stop this?

Could you please through some light on these questions from your experiences and understanding of the law?

Thanks & Regards,

Naresh

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4 Replies

Guest (Guest) 04 March 2010

I am talking about general law and not particularly keeping in view of the facts of your case. Sorry, if they will not suit your needs.

1. My first proposition is that a husband can be cruel as well as impotent. Hence, wife can seek the decree of nullity on the ground of impotency of the husband and also, alternatively, seek divorce on the ground of cruelty with specific instances of cruel acts in day to day life.

2. The wife has to prove that Impotence of the husband is only in respect of (qua) herself and not in respect of entire world. In other words, the husband may be cold against her and not against the other ladies.

3. It is very important. If Section 24 interim maintenance application lies in the petitions under void and voidable marriages? YES. Until the marriage is declared nullity, the petitioner is bound to pay maintenance to the wife. (Mangat Ram Vs. Anju Bala 2003 MLR 631 (Pb. & Har.)

kirtikumar ranjan (site supervisor) 05 March 2010

Dear Prabhakarji,

Can u please advice if wife geeting maintenace under section 24 and if husband files separte divorce case and wife files again for maintenece then which come in force. old or revised one ?

with regards

rajesh

Guest (Guest) 06 March 2010

Yes. She is entitled to file maintenance application u/s 24 in the divorce petition filed by you.

But the court while considering the maintenance application will see whether she has already been awarded maintenance under any other law (e.g. Section 125 cr.p.c. S.18 Hindu Adoption and Maintenance Act, Domestic violence Act or in any other petition under Hindu Marriage Act). If the court wants to enhance the maintenance amount keeping in view of the changed circumstances and increased income of payer or increased expenditure of payee, it can increase, BUT WILL SET-OFF THE AMOUNT TO THE EARLIER AWARDED AMOUNT. THAT MEANS YOU HAVE TO PAY ONLY ONE MAINTENANCE, SETTING OFF THE AMOUNTS AWARDED IN OTHER CASES.