SidChiBharg (Software) 01 April 2013

Suggestions solicited in my divorce case verdict.

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.

Reply Follow

7 Replies

Tajobsindia (Senior Partner ) 01 April 2013

1. Appeal before Hon'ble HC only if you planning to bring her back to her matrimonial home.

2. If S. 498 / S. 406 / DV / Maint. etc. cases on your head what good even rejection of judicial separation decree say now by Hon'ble HC going to bring to other cases? The bold quote in your brief is only valid when maint. order are passed and not for mental / physical cruelties and for the same get your respective facts (Code / Act respectively) checked again. Also once such decree are passed it is not obligatory for spouse to enjoin bed and board with other spouse thus it has indirect inference (persuasive) in DV Act if she claims R-T-R there for staying in matrimonial home which cannot be given based on decree in Civil Court dissolving parties marriage lis by way of granting Judicial Seperation.

3. Instead let her go on Appeal as she was petitioning seeking decree in divorce proceedings from you and there i.e. before Hon'ble HC if you still have same mindset r/w she claims for RTR and planning to bring her back then defend and or plead before Hon'ble HC to reverse the same is my view.

Otherwise so minor finding of FC is irrelevant in rest of the cases as it is ‘cryptic’ and the moment you disturb the same it will be journey not worth taking.

Reasoning:
"Damned if you do, damned if you don't"
Law (as in catena of decisions till date in reference to context) are silent where to conduct such re-conciliation meetings with deserted spouse, thus if you conduct in your home it is obvious an aggrieved metro wife will never like to come to your home as her lis will still remain same that she was kicked out – tortured (physically / Mentally) THERE and if you per se conduct it at say Taj Mahal Hotel’s lobby then such cryptic reasoning are given sensing parties should be judicially separated for want of grounds which is obvious (alternate relief is what I mean here) your side didnot oppose tooth and nail!

Cryptic here means that the ld. single Judge has taken a 'middle path' and indirectly saying both parties are half responsible to this stage instead of pointing / fixing finger at only one party.

R-T-R = Right to residence (as in DV act)

1 Like

Never Give Up (Fighter) 01 April 2013

Well , why not use this 1 year to make 498A and 406 , DV on fast track..and if you get lucky by the time one year gets over you may have less case in your kitty and divorce decree as well..

Tajobsindia (Senior Partner ) 01 April 2013

I approve of above (1 year) wisdom speak unless you donot know which bridge to burn and which to cross when the time has about come !

SidChiBharg (Software) 03 April 2013

Originally posted by : Tajobsindia

1. Appeal before Hon'ble HC only if you planning to bring her back to her matrimonial home.

Why do you say so? Plesae do explain. I do not plan to bring her back to her matrimonial home for sure. But if I don't appeal won't that amount to kind of acceptance on my part of the findings of the Hon'ble Judge of only one incidence of mental cruelty and that too partly. So in a way he has accepted only 1/2 incidence of mental cruelty and on that basis he has given a decree of judicial separation. I would like to appeal before the Hon'ble HC and set aside this order and cancel her application of divorce altogether. Anyhow I know for sure that the second party would appeal as she would not wait for 1 yr. of judicial separation to get over. PLEASE DO KINDLY HELP !!!

2. If S. 498 / S. 406 / DV / Maint. etc. cases on your head what good even rejection of judicial separation decree say now by Hon'ble HC going to bring to other cases? The bold quote in your brief is only valid when maint. order are passed and not for mental / physical cruelties and for the same get your respective facts (Code / Act respectively) checked again. Also once such decree are passed it is not obligatory for spouse to enjoin bed and board with other spouse thus it has indirect inference (persuasive) in DV Act if she claims R-T-R there for staying in matrimonial home which cannot be given based on decree in Civil Court dissolving parties marriage lis by way of granting Judicial Seperation.

As well all know that judgement of civil court (Family Court) is binding on criminal court (district/sessions) so the Hon'ble Family Court has rejected he claims of physical cruelty and all (14) but 1/2 instance of mental cruelty. So wouldn't this effect the cases of criminal court wherein we would say that no cruelty has happened? She had already NOT PRAYED for R-T-R in DV. She is living coolly in her parents home. I didn't get your contention " The bold quote in your brief is only valid when maint. order are passed and not for mental / physical cruelties and for the same get your respective facts (Code / Act respectively) checked again". Please could you clarify . The Civil Court had already made the judgement that there was no physical and mental cruelty so would this be taken up again in criminal court ? Would this finding binding on criminal court ?

Sure I would defend her appeal in HC. Also she in not claiming for RTR nor I am planning to bring her back.

Otherwise so minor finding of FC is irrelevant in rest of the cases as it is ‘cryptic’ and the moment you disturb the same it will be journey not worth taking.

Why do you consider this as minor finding of FC ? Isn't this worth that FC has taken a view that there was no phyical or mental cruelty as per facts mentioned by the girl in her petition? Why isn't it relevant in rest of the cases? I am of the same view and understand that the Judge has taken the 'middle path' as he could not entirely reject her divorce petition because of the 'abla nari' concept.

Reasoning:
"Damned if you do, damned if you don't"
Law (as in catena of decisions till date in reference to context) are silent where to conduct such re-conciliation meetings with deserted spouse, thus if you conduct in your home it is obvious an aggrieved metro wife will never like to come to your home as her lis will still remain same that she was kicked out – tortured (physically / Mentally) THERE and if you per se conduct it at say Taj Mahal Hotel’s lobby then such cryptic reasoning are given sensing parties should be judicially separated for want of grounds which is obvious (alternate relief is what I mean here) your side didnot oppose tooth and nail!

Cryptic here means that the ld. single Judge has taken a 'middle path' and indirectly saying both parties are half responsible to this stage instead of pointing / fixing finger at only one party.

R-T-R = Right to residence (as in DV act)

SidChiBharg (Software) 03 April 2013

Originally posted by : Never Give Up

Well , why not use this 1 year to make 498A and 406 , DV on fast track..and if you get lucky by the time one year gets over you may have less case in your kitty and divorce decree as well..

Can 498a/406/DV be made fasttracked to be completed in 1 yr. ? How does it help me ? Would automatically after 1 yr. she would get divorce OR there is something else to judicial separation ? I surely want divorce decree from her but on my terms not her's.

SidChiBharg (Software) 03 April 2013

Originally posted by : Tajobsindia

I approve of above (1 year) wisdom speak unless you donot know which bridge to burn and which to cross when the time has about come !

Didn't exactly get your point. Please be more clear and specific.

Tajobsindia (Senior Partner ) 03 April 2013

1. In free online legal portals this much ‘free’ opinions are call of the day.

2. If you want more understanding then opt for in-chamber discussions by meeting professionals legal fees OR take the dash to Hon’ble HC where Order will not be reversed is view of mine.

3. I had the privilege of reading your same questions in other internet forums and you have already been over advised unless you plan to do PhD on more or less opinion of FC findings.

4. The opinion of the FC is based on ‘equity’ principles.
Reasoning:
You and your family members at the time of her leaving should have locked front door of your home and should have called # 100 and upon a Beat Constable knocking at your home should have insisted on seeking ‘in writing’ that she is leaving matrimonial home which is what a husband ‘duty’ is all about in matrimony least he is charged later for the very ‘dereliction of his duties’. Did you do your duty which society casts upon you? NO. That is what fact finding the FC pointed at to you. So what ‘merit’ point you have now to approach before HC arrogantly telling me that you want to divorce her ‘on your terms’! Where were “your so called terms” in society that you both as couple were maintaining when she left and which became later as the very ‘cause of action’?
Illustration:
Not your facts these are, but, suppose a b/f of your wife comes to your home knocking and your wife packs up and attempts to leave with him, what you as her husband you are supposed to do then and there? Will you allow her to leave just like that? Remember Common law casts a ‘duty’ then and there upon you to protect her safety, security and well being no matter she is 'later' proved wrong in her such acts for a simple “social fact” that legally both of you are “that very moment” husband and wife and all these ‘cause of action’ starts and ends from ‘that’ very matrimonial home four walls and not outside or at her mama’s place which is termed as ‘dereliction of his duties’.