Tag Archives: divorce

Wife looses divorce u/s 13 HMA at Family court and quietly agrees for mutual consent at HC ! CHHATTISGARH HC

wife seems to have filed for divorce on grounds of cruelty but lost at the lower court. She appeals at HC but must have realized why she will NOT win and quietly comes for mutual consent !!

 

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 4-5-2018

Delivered on 19-6-2018

FAM No. 58 of 2017

(Arising out of the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016)

Smt. Sunita Nankani W/o Shri Mahesh Nankani, R/o Near Sindhu Bhawan, Sani Road, Korba, Tahsil and District Korba, CG, at present R/o Flat No. 506, Muskan Plaza, Shatabdipuram, Jabalpur M.P. —- Appellant
Versus
Mahesh Nankani S/o Shri Kanhaiyya Lal Nankani, R/o House No. T/48, Hospital Line, Camp Madhav Nagar, Katni, Tahsil and District Katni, M.P. —- Respondent

For appellant : Shri Vipin Punjabi Advocate

For respondent : Shri Ratnesh Kumar Agrawal, Advocate

Hon’ble Shri Thottathil B. Radhakrishnan, Chief Justice

Hon’ble Shri Sharad Kumar Gupta, Judge

C.A.V. ORDER Per Sharad Kumar Gupta, Judge

1. In this appeal challenge is levied to the judgment and decree dated 29-11-2016 of the Judge, Family Court, Korba, in Civil Suit No. 18-A/2016 whereby and whereunder she dismissed the appellant’s-wife’s divorce petition filed under Section 13 of the Hindu Marriage Act, 1955 (in brevity ‘Act of 1955′) against the respondent-husband.

2. In brief, case of the appellant is that her marriage was solemnized with respondent on 24-2-1995 in accordance with Hindu religion and customary rites and rituals at Katni, Madhya Pradesh. In their wedlock two children have born namely Himanshu Nankani aged about 18 years and Kapil Nankani aged about 15 years who are living with her. After the marriage the respondent started harassing her.

3. The respondent remained exparte and did not file written statement.

4. After conclusion of the trial, the trial Court passed aforesaid judgment and decree. Being aggrieved, the appellant has preferred this appeal.

5. During pendency of this appeal, the case was referred to the High Court Mediation Centre where a settlement was arrived at between the parties and both the parties were agreed that they will file an application for divorce by mutual consent. In furtherance thereof, both the parties have filed an application for divorce by mutual consent on 27-4-2018.

6. It would be pertinent to mention the provisions of Section 13-B of the Act of 1955 which reads as under:- “13-B. Divorce by mutual consent.–(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

7. In the matter of Amardeep Singh -v- Harveen Kaur [(2017) 8 SCC 746], in para 19 and 20 the Hon’ble Apex Court held that :- “19. Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13- B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/ Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. 20. Since we are of the view that the period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

8. From the above judicial precedent laid down in Amardeep Singh (supra), it is unequivocal that provisions of Section 13-B(2) of the Act of 1955 are directory in nature and Court may waive the six months’ statutory waiting period considering the circumstances as pointed out in above cited case law.

9. This Court has inquired both the parties. We are satisfied that both the parties have filed the application voluntarily, without any influence or pressure. They have been living separately for a period of one year or more. They have not been able to live together and they have mutually agreed that the marriage should be dissolved. All efforts for mediation/conciliation have failed in saving the marriage and there is no likelihood of success in that direction by any further efforts. Parties have genuinely settled their differences and have honestly and bonafidely decided to part. The waiting period will only prolong their agony. We see a strong case to waive the statutory period of six months under Section 13-B(2) of the Act of 1955. Thus, this Court waives the aforesaid waiting period of six months and orders that the aforesaid marriage solemnized between the appellant and the respondent is dissolved by the decree of divorce from today and the respondent-husband shall pay the allowance for maintenance at the rate of Rs. 10,000/- (Rs. Ten Thousand) per month to the minor child Kapil Nankani through his guardian – mother the appellant, till he attains majority from the date of filing of the application i.e. 27-4-2018.

10. The appeal is accordingly disposed of.

11.Parties shall bear their own costs.

12. A decree be drawn up accordingly.

 

Sd/-                                                                  Sd/-
(Thottathil B. Radhakrishnan)                  (Sharad Kumar Gupta)

Chief Justice                                                   Judge

 

 

pathak

Advertisements

When husband & wife are #separated for 19 years, #HighCourt says enough is enough, NOW #Divorce & stop Litigating !

Husband and wife separated for approx 2 decades

There seems to be No chance of reunion

They have stayed together for just 3 years, separated , then moved thru courts and finally landed at HC

Hon HC grants Divorce !!


Parties living separate from each other. No chance of their living together. Better that both parties be permanently allowed to live separate from each other. Decree of divorce allowed.

JHARKHAND HIGH COURT
Bench: JUSTICE Hari Shankar Prasad
SHANKAR CHAKRAVARTY Vs. PUSPITA CHAKRAVARTY
On 29 September 2004

JUDGEMENT

1. This appeal, at the instance of the appellant,is directed against the judgment dated 28.8.1998 and decree dated 7.9.1998 passed in Matrimonial Suit No. 19/13 of 1991-97.

2. The case of the petitioner-appellant in brief is that the petitioner is Hindu governed by Hindu Marriage Act, 1955 and marriage of the petitioner with the respondent was solemnized on 25th July, 1982 at quarter No. 12, Jaba Road, Haludbani, P.S. Parsudih,Town Jamshedpur, District Singhbhum Eastaccording to Hindu rites and customs and after marriage respondent came to her Sasural and both the petitioner-appellant and respondent lived together as husband and wife from 26.7.1982 to 1.4.1985. Their marriage was consummated and out of the wedlock a son was born to the petitioner and respondent on 18.11.1983.  https://twitter.com/ATMwithDick The petitioner was maintaining a very good and cordial relation with the respondent. It is stated that during the stay with petitioner the respondent behaved very irrationally with him and his family members and she used to quarrel with all of them and this caused mental suffering to the petitioner. It is further submitted that respondent used to go out of matrimonial home without consent of the petitioner and when petitioner used to protest, then she used to quarrel with him and it is alleged that on 2.4.1985 respondent’s mother Rita Banerjee took the respondent to her home on the plea that respondent shall be staying there for a month and thereafter she will return to the house of the petitioner and at that time mother of the petitioner was seriously ill and petitioner and his family members requested the respondent not to leave her matrimonial home but respondent left the house with her child and articles and did not return from there. https://vinayak.wordpress.com/ The petitioner went tothe house of the mother of the respondent several times and even persuaded the respondent to return with him but the respondent declined and refused to stay with the petitioner as husband and wife and respondent even misbehaved with the petitioner. On 1.8.1986 mother of the petitioner died and on this very occasion the respondent was requested and even persuaded to come but she did not come. Inthe month of July a Panchayati was also held in presence of the petitioner and respondent but that Panchayati could not materialize on count of interference by the mother of the respondent and respondent. Thereafter respondent instituted a case under Section 125, Cr. P.C. for grant of maintenance for herself as well as for her child, which was numbered as Misc. Case No. 6.87 and the aforesaid case was decided on 11.1.1991 and petitioner was directed to make payment of Rs. 300 per month in favour of the respondent and Rs. 200 per month for the child and the petitioner has been paying Rs. 500 per month as maintenance to the respondent and her child. https://vinayak.wordpress.com/ It is alleged that she has deserted continuously for a period of more than 5 years and there has been no cohabitation between the petitioner and respondent during the said period and this has caused cruelty to the petitioner and, therefore, this suit for decree of divorce hasbeen instituted.

3. Respondent appeared and filed written statement and submitted that petition is notmaintainable. It is alleged that ever since marriage of the respondent with petitioner, mother, sister and brother of the petitioner continuously ill-treated and misbehaved with her for the sake of dowry.  https://twitter.com/ATMwithDick Respondents are poor persons and not in a position to meet heavy demands of dowry and that led to ill-treatment of the respondent by the petitioner and his family members and ill-treatment included ruthless beating and some time denial of meal by the petitioner and inmates of his house. It is denied that during her stay with petitioner, she behaved irrationally with the petitioner and his family members and she used to quarrel with them. It is also denied that on 2.4.1985 her mother came and took her away and on the other hand, it is stated that a sum of Rs. 10,000 was demanded from the mother of the respondent for construction of room, which was not fulfilled by the respondent and by her mother, as a result of which respondent was mercilessly beaten by the petitioner and ultimately driven out of the house with only one torn Sari. She has not taken any article with her. It is also denied that petitioner ever visited her mother’s house for taking her away. All allegations that petitioner visited the house of the mother of the respondent and persuaded her and her mother for taking her away are not correct and on the other hand, petitioneralways demanded Rs. 10,000 as dowry.

4. On the other hand, a show cause was filed on behalf of the petitioner in the proceeding under Section 125, Cr.PC and allegation has been leveled that respondent has developed immoral habits at her parentage house and she has no check over her and that is the version of the petitioner and in that view of the matter, can there be any genuine plea on behalf of the petitioner for taking her away to his house. https://twitter.com/ATMwithDick The respondent has alleged that no Panchayati was held and it is further alleged that she has not caused any mental cruelty to the petitioner and further that she has not deserted the house of the petitioner without any reasonable cause.

5. On the aforesaid pleadings of the parties, the learned Court below framed the following issues for their determination in the suit:(i) Whether the petition of the applicant is maintainable?(ii) Whether the petitioner has got valid cause of action?(iii) Whether the respondent is guilty of causing mental cruelty to the petitioner?(iv) Whether the respondent has withdrawn from the society of the petitioner without any reasonable cause or whether the petitioner has kicked her out from his house for the fulfilment of his demand of Rs. 10,000 as dowry for the construction of a room?(v) Whether the applicant is entitled to a decree of divorce as prayed for?

6. The learned Court below, after recording evidence both oral and documentary of the parties concerned, decided the issues and ultimately came to a finding that no case forgrant of decree of divorce is made out and, therefore, dismissed the suit of the petitioner for a decree of divorce.

7. The case of the petitioner-appellant is that his marriage was solemnized according to Hindu rites and customs with the respondent on 25th July, 1982 and the respondent went to his house and remained there till 1.4.1985 and during this period he maintained cordial relations with the respondent and out of the wedlock a son was born to them in 1983 but all of a sudden mother of the respondent came and on the plea that she would stay at her house for a month, took the respondent to her house and since then she has not come back to his house, although he made several attempts to bring her back and even persuaded her mother and her but she is not willing to come to his house. In the meanwhile respondent filed a case under Section 125, Cr. P.C., in which an order was passed and respondent was allowed maintenance allowance @ Rs. 300 per month and Rs. 200 per month for her child and he has been paying Rs. 500 per month as maintenance allowance. https://twitter.com/ATMwithDick On the other hand case of the respondent is that she was brutally assaulted and humiliated by petitioner and even meal was denied to her for non-fulfilment of demand of dowry of Rs. 10,000 which petitioner and his family members made for construction of a room in the house and when she and her mother failed to fulfil his demand she was mercilessly assaulted and ultimately driven out of the house and in such a situation shehas left the house of the petitioner, but not without any reasonable cause.

8. Now the point that arises for determination in this appeal is whether the plaintiff is entitled to grant of decree of divorce on the ground of cruelty and desertion.

9. The learned Court below has perused the evidence of the witnesses produced on behalf of the parties and has also heard the submissions of the parties and after carefulscrutiny of evidence, both oral and documentary, came to a finding that no case for grant of decree of divorce is made out and, therefore, dismissed the suit.

10. The learned Counsel appearing for the petitioner-appellant, submitted that petitioner and respondent are living separate from each other for the last 19 years and there is no chance of their living together and, therefore, on the basis of theirlong separation, a decree of divorce should be passed because marriage was solemnized in the year 1982 and only three years they remained together and out of their wedlock a son was born to them but thereafter from 1985 both of them are livingseparate from each other and thus by now they have remained separate for the last 19 years and there is no chance that they will be willing to reside together. In that view of the matter, learned Counsel for the appellant placed reliance upon Prabhat Kumar Mitra v. Sikha Mitra, II (2002) DMC 444 (DB)=(2002) 2 JLJR 619, in which it hasbeen held that parties living separate from each other for the last 22 years, the Court has allowed the divorce and allowed both the sides to permanently live separate from each other and in the instant case also the petitioner and the respondent are living separate from each other for the last 19 years and there is no chance of settlement and when there is no chance of settlement and so it is better that both the parties be permanently allowed to live separate from each other.

11. In that view of the matter, this appeal is allowed and the judgment and decree of thelearned Court below are hereby set aside and decree of divorce is allowed but subjectto the condition that petitioner-appellant willpay a sum of Rs. 1,50,000 to the respondentas permanent alimony. No order as to costs. https://vinayak.wordpress.com/

Appeal allowed.

 

One more Alpha wants a divorce and wants it quick ! Omar Abdullah Seeks Divorce, Wants To Re-Marry;

01 March 2018NationalNews Analysis

Omar Abdullah Seeks Divorce, Wants To Re-Marry; Delhi High Court Asks Estranged Wife To Reply

File Photo

The Delhi High Court today sought the response of Payal Abdullah, the estranged wife of former Jammu and Kashmir Chief Minister Omar Abdullah, on his plea seeking divorce on the ground that their marriage has broken down irretrievably and he wants to get re-married.

A bench of Justices Siddharth Mridul and Deepa Sharma issued notice to Payal asking her to file a reply before the next date of hearing on April 23.

The court also sought her stand on an application moved by Omar seeking early hearing in the matter.

Advocate Malavika Rajkotia, appearing for Omar, claimed that the court had on an earlier date asked if the parties wanted to get married again. She replied in affirmative about Omar’s intent, saying “I do”.

The application by Omar seeking grant of divorce has been moved in his petition challenging a trial court decision of August 30, 2016 dismissing his plea for divorce. He has contended that their marriage has “irretrievably broken down”.

The trial court had held that he had failed to prove irretrievable breakdown of the marriage.

It had also said that Omar could not prove his claims of “cruelty” or “desertion” which were the grounds alleged by him for grant of decree of divorce.

In his appeal against the trial court order, Omar had claimed that his marriage had broken down irretrievably and he has not enjoyed conjugal relationship since 2007 and the couple, married on September 1, 1994, were living separately since 2009. The couple have two sons who are staying with their mother.

PTI

source

https://www.outlookindia.com/website/amp/omar-abdullah-seeks-divorce-wants-to-re-marry-delhi-high-court-asks-estranged-wi/308978

 

Don’t tell me we need more awareness. there’s enough already and it’s time to act !!

Don’t tell me we need more awareness.

News papers, TV debate shows, FB, Twitter, Street corners, everyone talks of how women cheat, how women file fake cases.

Judges have repeatedly spoken about misuse of 498a. 1000s of blogs and FB pages exist on #fake498a #fakeDV #maintenace #Jailbail Industry.

Regional language media regularly posts info on how women kill their husbands to elope / live with lover-boys. National media is full of Indrani Mukerjea type cases.
#fakeCases are now a mainstream issue

#thirdWaveFeminism is not a holy cow any longer. It’s being kicked around the world.
So, awareness IS there … We are drowning in awareness!!.

IMHO What we lack is the willingness to think before marriage and the willingness to fight after falling into a trap

I’m confident that this will change

i’m sure that the tide will turn
It’s just taking time as we continue with the march
#My2Cents #RiseUpIndia