Question on divorce petition counter - advice pls!

. Is it mandatory should I have to let the court know that I am not interested in living with her? Does this affect my counter petition’s credibility?

It is not mandatory for you to let know the court that you are not interested in living with her any more.  In fact, in my opinion, you can better not to make any commitment before the court at this early stage of trial, this is to exercise caution.

2.      2. Can I just deny the allegations and not mention about my intention of living or not with her in the counter petition? 

Yes, in your counter to her petition, you can deny all her allegations against you and remain silent about your idea/opinion/intention to live with her anymore or not, this will be  a strong counter to her divorce petition by making her to keep guessing and worry  about your intention to deal with the case.

3.     3.  Is there any advantage/disadvantage for including or not including my interest on her in the counter petition?

The advantage by not mentioning your interest on her in the counter is that you have not committed to any such issue which may prove fatal to challenge her case, especially to her allegations against you.  The disadvantage is that you are indirectly accepting all her allegations she made in the petition against you.

4.      4.  Will the court grant her divorce, without further hearing, if I say I am not interested in living with her?  Will the allegations against me be cleared in such case? It is not that way that the court will straight away grant her divorce as prayed for without further hearing and you giving your consent to it. 

the best way to tackle this issue is to file a strong counter denying all the allegations, allow her to proceed with the prosecution of the case, challenge each and every allegation by cross examining her, let she depose or break in the open court and realise her mistakes, after that, if she amends herself and changes her mind to live with you, if you are inclined to her proposal, you may take her back or else, you may file a memo before the court stating that it is no more possible for you to live with her and continue the married life due t her cruel mentality which has been proved before the court, hence, you would like to submit to the decree of divorce as prayed for by her subject to exclusion of her allegations.

Dear Mr. Kalaiselvan,

Thanks a lot for your inputs. I will proceed as suggested.

Dear Shri. Kalaiselvan sir,

Thank you for your Valuable inputs sir,

It will helpful more to us,

Many Thanks,

Best Regards,

Shankar.

@Sankar and @ Ramesh, both are welcome for your appreciations.

Will it be appropriate in this  case for  husband can seek relief u/s 23 A of HMA.

23A Relief for respondent in divorce and other proceedings. —In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.]

CONTEST THE CASE BOLDLY LIKE AN  WARRIOR.  TAKE HELP OF A GOOD LAWYER WHO CAN MEET WITH YOUR QUERIES.

Dear Mr. Kalaiselvan,

Based on your inputs I talked to my lawyer that not to mention about my intention of being not interested in living with her in the counter petition. He is still insisting we will have to let the court know that I am not interested. Else we will need to file a RCR along with the counter because during cross examination the other party’s lawyer will ask what steps did I take to live with her and will blame me for just delaying the divorce if no such RCR is available.

Honestly, I am not interested in living with her to file a RCR and even if get the RCR in my favour I am pretty sure she will not come live with me. So it does not make sense to me to file a RCR. Also from different topics in this forum I see RCR is not suggested or advised as it will be a different case, and is not really directly related to divorce case. My family and I tried several times to talk to the girl’s family and even now I am ready to give her MCD, but they are being unresponsive to our calls or e-mails and even being disrespectful if someone visits their place on our behalf. Only because of their unresponsiveness I am forced to contest this divorce.

My point is if I say that I am not interested in living with her in the counter petition, then though I deny the allegations, it may look like I am denying it just for the sake of it and the credibility of denials will take a beating. Am I right? 

I am not interested in RCR as well, so can you share your inputs as how to handle the scenario if there is a question like what steps did I take to live with her? Will this be detrimental to my defense? or will adding a sentence in the counter stating to dismiss her petition and advice her come live with me work?

All experts inputs are greatly appreciated.

Thank you.

Ramesh

we both share the same name and are going though same fate.

Discuss with your lawyer about u/s 23 A of HMA  , where the respondent can seek alternate relief.

regards

Ramesh

Section 23-A of HM Act: Relief for respondent in divorce and other proceedings:

In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter claim for any relief under the Act on that ground, and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this act to which he or she wold have been entitled if he or she had presented a petition seeking such relief on that ground.

Counter claim is substantially a cross-suit. It is really a weapon of offence and enables the respondent to enforce a claim against the petitioner. It need not be an action of same nature as the original action but the relief sought in the counter-claim against a petition under the Hindu Marriage Act must be for some relief under the same act.  A counter claim may be set up only in respect of claim as to which the party can bring independent action in the court.

The above is for the Ramesh who posted his query subsequently. 

Now to the first Ramesh's subsequent query:

Adding a sentence in the counter stating to dismiss her petition and advice her come live with me will certainly be detrimental to your defense because it is a confirmed decision that you are not interested to live with her anymore at the same time you do not want to accept her allegations against you, then it is better to go ahead with contesting her divorce case as was advised to you in my previous post above.  If you feel that either a counter claim or a separate  RCR case makes no sense at all to the decision already taken in this regard you may go ahead by challenging her case properly and strongly. Decide.

Mr T Kalaiselvan  thanks for the details. Very nicely explained.

Very Brilliantly Explained by Shri. Kalaiselvan sir regarding the Divorce/Judicial seperation/RCR which will give us a Positive energy tonic & enthusiasm

It will guide so many Vicitms ,that how to react/courage in this type of situations.

HAT's OFF SIR,

Many Thanks,

Best Regards,

Shankar.

Thanks Ramesh or Rajesh for bringing in section 23-A in the picture.

Mr. Kalaiselvan,

Thanks a lot for throwing some light into the section 23-A of HM act which I was not aware of.  Counter claim is something new which I should definitely think about.

 My understanding is “counter claim” is different from “counter petition”. Please correct me if I am wrong. Should the “counter claim” be filed on the same date along with the “counter petition” or can that be filed separately later? The court date was Aug 1 for me to file the counter petition.

I think I did not frame my earlier query properly so did not get the answer for my main question. i.e.) Per your original input, if I did not mention my intention of living or not  with her in counter petition, how to handle if there is a question in cross examination as what steps did I take to live with her? As I am not interested in filing a RCR will that be a drawback?

I do not want the other party to shift focus and blame me for delaying instead of trying to prove their allegations.

Thanks again for your invaluable inputs.

May your service to this forum continue!

The counter claim to be filed along with the written statement or counter to the main petition by paying appropriate court fee as applicable to your state.  Any counter-claim filed at a later stage i.e., after filing written statement/counter will be considered as an after thought and may not entertained by the court. There should be a mention about the grounds that you are proposed to make it in the counterclaim in the written statement/counter to the main petition, so that the counter claim can be substantiated about the intention of the respondent.

As far as cross examination, you should analyse the facts on your side in advance on the basis of which you can go ahead with it.  If she had filed the petition for divorce, it is her botheration to prove her allegation, you can defend them to the core, but for the steps from you side to live with her, you should take it up that you were always ready and willing to live with her but it was she on the basis of false allegations that she stayed away from the matrimonial life voluntarily.  The counter claim filed if any by you will help to prove your pleadings. Take further  advises from your advocate on the basis of your circumstances.

If you do not want to live with your wife under the same roof and to continue your conjugal life you must purge it before the court saying that as your wife lost your faith and love by filing cases against you with apparently false allegations so you do not want to stay with her under the same roof but you are ready to give her accommodation as your wife but if after sometimes she will be able to prove herself as a true wife by her behavior and obedience she will be taken back in your bedroom. You also submit that marriage is an agreement which bears some duties as obligations. If the wife breached her obligations  she shall have to suffer.