• Divorce appeal disposal - fresh divorce petition

Respected Sir,
My marriage was in 2010,me from kerala and she from mumbai.Both are working and equally qualified.A child born out of wedlock 2013.She left matrimonial home willfully in 2014 with child.i filed rcr on Nov 2014.Sh stayed the proceedings and applied for transfer of petition to Mumbai.On pendency of it filed DV on me and my parents in 2015.Counselling failed .RCR was withdrawnand i filed for Divorce Jan 2016 in kochi.That also got transferred to Mumbai thru Supreme court.In Hon'ble Apex ccourt we requested case to be expedited and it was ordered to finish case trial to be finished in one year. My grounds were cruelty and desertion.Case dismissed on 2018 March stating desertion though proved is 2 months short of 2 years Statutory period for divorce.Mental cruelty though she tried to commit suicide (we produced suicide letter) it was out of emotional burst.cruelty based on wild allegation of extramarital affairs on me,though no proof is submitted such affairs will rarely have proofs.DV not yet decided(although High court has ordered upon request to finish DV case by June 2018 ).

I am confused Sir
.1,Some say divorce should have been granted by family court and now chances for appeal is bleak and can run in High court Mumbai for min 5 years.So freah Divorce Petiton since Desertion is proven but only statuory 24 months not completed that time but now yes.But that means whole trial and another 4-5 years.

2.Some say wait appeal can stand because i had a strong case on merits though judgement was negative.And DV decision when it comes(there is no proof,nothing for DV,case itself filed after seperation 15 months later)it can favourably influence High court appeal divorce case.Now as Ajay Sethi Sir says it can still run for 5 years.
I am paying 40,000rs as maintenance(for her and kid) since 2015.she wont come for MCD unless she gets more than 1cr.What should i do .please advise.I know its complicated but please advise.
Asked 4 years ago in Family Law
Religion: Christian

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21 Answers

1) Appeal can stand in your case, get best lawyer in mumbai high court. Your case can expedite asap and get judicial separation divorce earliest.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. Your divorce petition has been dismissed by the family court. Every petition of divorce is special on the face of its own merits. UNless we peruse the pleadings and the evidence led before the Family Court we cannot say what the prospects are in the High Court. Needless to add though, the High Court as the first court of appeal can quash the judgment of the trial court and allow the divorce petition.

2. If you file a fresh divorce petition now then the period of 2 years to prove desertion has to be begin from the date on which the decree has been passed by the Family Court.

3. Family Court appeals in Bombay HC can take 5 years for sure,

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. When divorce suit is dismissed then preferring an appeal is only option to see turn of tide. The delay in disposal of appeal can be managed by regular follow ups but can not be avoided altogether.

2. I repeat appeal and appeal alone is you only option. No fresh divorce suit on any other will not stand in court and you will purely waste time pursuing it.

3. There is no reason to succumb to her exorbitant demands. However of there is scope then file counter cases to bring her to a negotiation table and settle amicably.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Under no circumstances should you pay wife Rs 1 crore

2) file appeal against order dismissing your divorce case

3) case of mental cruelty is made out

4) it is true that disposal of appeal would take at least 5 years

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. File an appeal before high court and challange the order of family court. The case wont take much time as in Now days the court is in view of that the matrimonial cases should be decided fast in order to secure further life.of both parties.

Also the record of family court that is judgement, statements need to be persued to see the chances of appeal to succeed.

2. The regular follow up of case and no adjournments the court can decide up the matter fast as everything is on record.

3. In the fresh petition the time shall be counted again after the petition was disposed.

The best chance is high court appeal the order of family court the high court can consider your case.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under:-

1,Some say divorce should have been granted by family court and now chances for appeal is bleak and can run in High court Mumbai for min 5 years.So freah Divorce Petiton since Desertion is proven but only statuory 24 months not completed that time but now yes.But that means whole trial and another 4-5 years.

Opinion:- If the divorce granted by the Family Court then the opposite party may file an appeal which can be decided by the High Court and take more then years, due to the pendency of cases before the High Courts.

It is mandatory for two years continue of deseration for filing the case based on desertion, it will be better to fight your case based on cruelty which can be easily proved.

2.Some say wait appeal can stand because i had a strong case on merits though judgement was negative.And DV decision when it comes(there is no proof,nothing for DV,case itself filed after seperation 15 months later)it can favourably influence High court appeal divorce case.Now as Ajay Sethi Sir says it can still run for 5 years.

I am paying 40,000rs as maintenance(for her and kid) since 2015.she wont come for MCD unless she gets more than 1cr.What should i do .please advise.I know its complicated but please advise.

Opinion:- It is true that appeal will take more than years due to the over burden of cases in High Courts, you have to pay the maintenance to her and child till her remarriage and completion of 18 years of your son, divorce is granted or not is it immaterial.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

1. Why are you confused? As per law, you can file divorce suit on the ground of desertion only after 2 years of her leaving you. Whatever is alleged by you shall have to be proved. Generally, I advise my clients to first collect irrefutable evidence of cruelty, adultery etc. through audio/video recordings before filing the suit.You had filed divorce suit without being prepared with evidence and also alleged desertion prematurely. You shall have to file the divorce suit on the ground of desertion now and this time it might not take so long period since her act of desertion has already been proved.

2. My suggestion will be to wait for the decision of the DV case to come, if you expect it to come shortly and then file the Divorce Suit afresh on the ground of desertion and cruelty (if the result of DV case comes out shortly) being

fully prepared with all your evidence in support of your allegation.

3. When your base is not strong, appeal may not yield your desired result and it will also kill precious years. So, it will be prudent on your part file the divorce suit being fully prepared with your evidence.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

You can challenge the judgement as you have valid grounds of challenge the HC may give judgement at your side. The normal procedure and time of HC will have to be considered and you need to wait for the same. It will not take 4 to 5 years but surely less than that. You should challenge the same if you don't then you have to abide by family court judgement.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

1. i would advise you to file a fresh divorce case since now the period of two years is completed, file the petition and after some time say 1 year move to the HC for getting the same expedited.

2. You must take the step as advised above.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Without going through the papers in detail, it will be difficult to comment whether you stand a chance in the High Court or not. However, as rightly advised, it is lengthy and time consuming procedure and will take 5 years minimum in the Bombay High Court. Similarly, filing a fresh Petition too would take a similar amount of time and if challenged, even longer.

In order to put a quick end to the litigation, find some incriminating evidence against your wife to compel her to come for settlement on your terms. There is no other option.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Approach the High Court and file an appeal against the rejection of your divorce petition.

As soon as the requirement of 24 m0nths of desertion is satisfied, request the High Court to remand the matter back to the Family Court so that it may be reheard in light of the fact that the requirement of 24months of desertion is being satisfied.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

I think you must file an appeal, instead of re-approaching the Family Court.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

SC order is binding on family court for disposal of divorce petition

2) it would not help you in appeal

3) engaging senior counsel would not help in expediting appeal

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. Yes, the Apex court order was binding on the family court only and has ceased to have affect after the Judgement has been passed.

2. If the Appeal takes a long time, yo can file another application before the supreme court for expediting the disposal of the appeal which will be binding on the High Court.

3. Filing false DV case is considered as a form of cruelty for which decree of divorce can be sought.

4. It is the standard operation procedure of the husband/wife to delay the proceedings if he/she is reluctant to accept decree of divorce sought by the other side.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

In appeal, this SC will hold no value now.

Though you may mention the same before the HC and see if HC takes the note of the same or not.

The case for speeding up the appeal can only be filed after seeing that the case is not being heard expeditiously by the court. Case can not be expedited in apprehension that the disposal of the case will take time.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

The order of Supreme court was binding only on family court and doesnot have significance in appeal. No senior counsel can make a non binding order bound on high court.

See in high court it has to be argued on fact already presented and law so once the proceeding of appeal start the only thing you can do is appoint a good lawyer who doesnot.seek adjournments and if opposite party is seeking unusual adjournments than objects them.

This can work in your favour as false cases amount to cruelty if the court decide it was a false case and observes than the same thing can be presented before court to substantiate your points that wife has been cruel to you.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If SC has expedited it then it is duty of HC to abide the same. If not then you can file miscellaneous application in the same for expediting the matter in HC.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Yes, the order for expeditious disposal of the case applies to trial only and for appeal if preferred subsequently.

To expedite the DV case or the 498A case you can apply for such order from the high court under its revisional application.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

The order of the Supreme Court expediting your matter will not help you during the Appeal in the High Court. Expediting the case will be of no help and may even further delay things if the Court is indeed inclined towards allowing your plea as expedited matters dont come on the board quickly.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

In my opinion,the lower court should have considered various other facts other than the subject 'desertion' alone before taking a decision to dismiss the petition.

There are ample evidences that stands proved for cruelty.

Willful abandonment can also be projected as an act of cruelty besides an after thought DV case filed after 15 months of leaving the matrimonial home.

Fresh divorce case may take another 4 years to get disposed.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Appeal may not take that much time for disposal. it can be disposed within 6 months also depending on how your counsel pushes it through the high court.

You may discuss with your own lawyer about this and proceed with an appeal against the lower court judgment

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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