c. shah... (Service) 15 June 2013

Sec.14 of hma applicable after pending mcd petition

A Contested divorce petition u/s.13(1)(ia) was entered before one year completion of marriage. Now, An application has entered by parties for granting order to convert the petition from contested divorce u/s.13(1)(ia) to mutual consent divorce u/s.13b in family court after two years completed of marriage.Now,granting order of court for conversion of petition from sec.13(1)(ia) to sec.13b is still pending.My question is; after applying for converting petition to MCD after two years of marriage,Can Section 14 of the Hindu Marriage Act (No petition for divorce to be presented within one year of marriage) apply by respondent as converting the petition from Sec.13(1)(ia) to Sec.13B is still pending by Court? Note: here, the court had entertained the petition u/s.13(1)(ia) without any leave and exceptional hardship. (In short, earlier petition is applied to convert in MCD but still pending by court)

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Shantilal Pandya ( Advocate) 15 June 2013

Seeking relief under se 14 if at all it is so needed in a given case, is a condition precedent for filing a petition for divorce since the provision of section 14 is in the mandatory form the judge is not competent to proceed further unless the provsion is complied with you can refer to section 14 of the Hindu Marriage Act which is reprodued below .

Section 14(1) in The Hindu Marriage Act, 1955

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[ unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in. that behalf, allow a petition to be presented 1[ before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1[ expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 1[ expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

Adv Archana Deshmukh (Practicing Advocate) 15 June 2013

S. 14 HMA is not applicable now. There is no need to file a petition u/s. 14 at this stage.

Shantilal Pandya ( Advocate) 15 June 2013

It is respectfully submitted that the conversion petiton is not granted uptill now and the hma as filed is pending, the defendent can object to the continuance of the proceeding for want of any action under section 14 of the HMA act and unless the case falls under excepted advantage for the petitioner , the competency of the judge is ousted. how ever the decree if any may be subject ot the commencement of operation of the decree, still how ever there is every possibility for any of the parties to resile from the conversion consent and frustrate the application for conversion. it would necessarily mean that the judge is bound to make an excercise under se,14 of the Act regardless of the out come of the excercise ,the issue of noncompliance of section 14 can be raised as a preliminary issue also the question of deffering operation of the decree comes into play only when the permission of the judge is obtained by concealment, misrepresentation etc which is possible only if the petiotin under section 14 is filed and decided . The case may deffer when the petiotion for permission is not filed at all.. thanks