D V K KUMAR 20 July 2017

Section under which second divorce petition can be dissmised

Dear Experts, please guide over an issues:

Husband file divorce petition u/s 13 HMA-1955 at Varanasi Family Court in August 2011. Notice issued, served upon wife in August 2011. Wife at Indore (M.P) filed DV ACT case agaisnt husband, his family members and accepted knowledge of husband divorce petition filed at Varanasi in her plaint supported with affidavit afterwards wife filed fir u/s 498-A, 506, 34 of IPC at Indore (M.P). In September 2013 wife filed maintaince case u/s 125 crpc at Family Court Indore, in which she accepted knowledge of husband's divorce petition filed at Varanasi in her plaint supported with affidavit.

Husband's divorce petition proceeded Ex-Partae in July, 2013 due to non-appearnce of wife. Afterwards, wife appeared and filed an application under Order 9 Rule 7 of CPC rws 151 of CPC with affidavit which is opposed by husband in written affidavit and at the stage of argument, wife again starts non-appearing. Resultant of which Hon'ble PJ proceded Ex-Partae agaisnt wife due to her non appearance in June 2015. Husbands divorce case is still pending at Varanasi Family Court.

Now, at Family Court, Indore (M.P), Wife filed a Divorce case u/s 13 HMA-1955 agaisnt husband in Novemer, 2016 in which she accepted knowledge of husband's divorce petition filed at Varanasi in her plaint supported with affidavi but did not disclose her contesting part in it. Afterwards, notice issued & served to husband. Husband appeared before PJ Court and ask questions regarding 'Maintainability of Wife Petition' because husband's divorce case is already pending at Varanasi (U.P). The PJ asked husband to file appropirate applicaiton menitoning proper Section under which Maintainebility of Wife Petition is challanged along with grounds for dissmissing the same on next hearing date.

My Question :

(1). Kindly provide the relevant Section of CPC, CRPC or Family Court Rule, under which Maintainebility of Wife Petition in challanged along with grounds for dissmissing the same ?

(2). Whether wife divorce petition is maintainable or not ?

(3). Whether it is a criminal offence to file second divorce petition when first petition filed by her husband is still pending in which she had a record of contesting ? If yes, kindly provide proper guidance.

(4). Can wife divorce petition be transfered to Varanasi (U.P) by PJ, of Family Court Indore (M.P) ?

Please reply as early as possible.

With Regards,

DVK

Varanasi (U.P).

Reply Follow

5 Replies

Siddharth Srivastava (Advocate) 20 July 2017

For questioning the maintainibility of divorce petition you can move application u/o/. 7 R. 11 CPC. for getting the case transferred to Varanasi court you have to file necessary application in supreme court for transfer.

Azhagananth (Lawyer) 21 July 2017

For Questions 1 to 3:

1.unless a Judgment is delivered after trial in Husband case, there is no bar for wife to file a case under CPC, CRPC or Family Court, 2.the case is maintainable, 3. it is not an offence.

4. The case can be transfered by filing Transfer petition before Supreme court.

What had prohibited the husband for getting decree from 2015 after the wife remanided exparte for Twice.?

Husband may file rejection application, but it will not be allowed and only time & money only be spend

It both want dirvoce. Husband may appear in the Place where the Wife had filed divocrce and in open court at time of hearing of case, may State "I, Submit to the Decree". the court may grant decree if satisified.

Ms. Usha Hegde (CEO) 21 July 2017

I concord with the above 2 replies.

But I would like to mention that the wife married a loda.

It does not even look like a advocate goof up.

It clearly appears that petitioner husband is not even bothered to take divorce from court and is happy doing rounds to court here and there whenver boredom sets in. Otherwise there seems to be no prudent explanation for the above in-actions explained by the (loda) petitioner husband.

When the AS (answer seeker) himself does not want to help himself, no solution can help would be my opinion.

Adv Radhika Mehta (Advocate) 21 July 2017

There is nothing which the husband can do. If the husband had obtained a Decree of Divorce, then the legal position would be different as then the provisions of Sec 11 of the Code of Civil Procedure, 1908 would apply. Under the circumstances, narrated hereinabove, the maintainability of wife's Petition cannot be challenged. The only thing which the husband can do to take advantange from the present situation is to harp on this conduct of the wife to substantiate his case of cruelty further. Yes the husband can file a transfer petition before the Supreme Court under Section 25 of the Code of Civil Procedure, 1908.

Rohitash Kumar Arya 21 July 2017

Dear all, Can two cases be filled for same case? Husband approached court First and obtained decree twice. Wife can not say it 2as an ex parte order as she appeared in 2nd case. Mala fied intention clearly appears as wife filled case in Indore after judgement at Varanasi and it shall be brought into the knowledge of Presiding officer. Husband shall submit his judgement before court at Indore. No second trial.for same cause . For one cause ,no one can be tried twice as per constitution. Maintenance is separate issue and can be decided by the court. Husband can go for 2 nd marriage too as 2nd order stands valid, as it was passed after appearance of wife. When u approach court , your hand should be clean is the universal acceptance in law, wife's hand are not clean. Over not appearance court has power to decide case. And you can't challenge it until and unless you satisfy court for reason for non appearance. In Saleem Advocate Bar Association. Vs Union of India it is clearly mentioned by SC that NON APPEARENCE IN COURT IS ADMISSIBLE ONLY IN. IRCUMSTANCES OVER WHI HUMAN HAS NO CONTROL eg Natural Calamities ,law & order situation , Dr. Advice. That too only 3 times non APPEARENCE on date is permissible. Else you have too satisfy the court. I hope Indore court will dismiss the case on presentation of Banaras courts order and there will be no need for transfer.

Section under which second divorce petition can be dissmised

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