Hi Friends,
My wife had filed divorce u/s 13 HMA on the basis of cruelty. The divorce case was fiercely contested by me. The Hon'ble Family Court had framed the issue that "whether the respondent - Husband had treated the petitioner - wife with cruelty as per facts stated in the petition".
Findings:
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The Hon'ble Family Court judge in the final verdict had enumerated 2 incidents of Physical cruelty and about 14 incidents of mental cruelty mentioned by her as per her main petition. The Hon'ble Family Court judge finally rejected her claims of physical cruelty entirely and out of the 14 incidents of mental cruelty he only accepted her one incidence of mental cruelty and that too partly.
The incident which the Hon'ble Judge took note off he just mentions that "although the petitioner - wife left her matrimonial home but respondent and his family members were also responsible for that. The respondent or his family members didn't try to stop her from leaving her matrimonial house. The respondent could not prove that the petitioner left her matrimonial house with the permission of respondent or his family members. On the next day the respondent met the petitioner's father at a 3rd place rather than arranging the meeting at his place. The respondent and his family members later on met the petitioner and her family members at her mama's place rather than the respondent's home. The attitude and behavior of respondent and his family members towards the petitioner when she was leaving the house could not be termed as correct".
Relief:
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The petitioner has been able to establish one act of mental cruelty and that too partly. As a result the petition of divorce as presented by the petitioner is not accepted in its present form rather it deems just to accept so far as judicial separation is concerned.
Order:
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The petition presented by the petitioner u/s 13 HMA is not accepted in its present form. The marriage between the parties is dissolved as per the judicial separation decree.
Please Note: The judgment and the order is in Hindi I have tried it hard to translate it to English so there might be some omissions.
I do understand that as per section 13A the Hon'ble Judge had the power to grant judicial separation instead of the decree of divorce as asked by my wife.
13A. Alternate relief in divorce proceedings. —
1[13A. Alternate relief in divorce proceedings. —In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.]
My Queries:
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1) Without accepting the findings of the Hon'ble Judge I would like to know that even if it were taken at its face value are the findings of the hon'ble judge mental cruelty towards the wife? Even if were to be accepted then can incident of 1 day and that too partly (as per the hon'ble judge's verdict) be taken to be so serious to grant the decree of judicial separation?
2) What is the possibility of me winning in the HC if I contest this order of judicial separation?.
3) On what basis should I challenge the order in HC? What all points should I put forward in HC?
4) Please let me know the relevant citations (as per my case circumstance) which I can put forward in HC?
5) I am planning to go as Party in Person (PIP) in HC and put forward my case BUT I do need suggestions for preparing a very very good appeal and citations.
6) Also I have 498a/406, maintenance cases and other full package of cases which a man gets. As we all know that judgement of a civil court (Family Court) is binding over judgment of a criminal court (district/sessions court) so would this judgment help me in 498a/406 and Domestic Violence (DV) case put by her in district/sessions court as her contentions of physical cruelty has already been rejected by Hon'ble Family Court and out of her 14 contentions of mental cruelty only 1 of her contentions of mental cruelty has been accepted by the Hon'ble Judge and that too partly.
7) Also how are the findings of the Hon'ble Judge helpful to me in any way - as he has rejected her claim of physical cruelty and only accepted her single incidence of cruelty and that too partly.
So Finally the Hon'ble Judge gave the verdict of Judicial Separation of 1 yr. and the final order was "The petition of the petitioner in its present form is not accepted instead a decree of judicial separation is granted".
Please do let me know your thoughts/suggestions on this. How should I counter this. How should this verdict be appealed in HC. I want to appeal this verdict in HC so that HC rejects her divorce petition in its entirety and also cancels the judicial separation verdict given by the Hon'ble Family Court.
As always waiting for suggestions from esteemed members of the group.
Thanks and Regards,
Sid.
