• Filing of parallel divorce petition

Wife filed complaint of cruelty against husband and in-laws in women cell. After one year of mediation no settlement could be reached and therefore FIR under section 498A registered against husband and in-laws. Three months after that husband filed Divorce petition on grounds of cruelty - non consummation of marriage. Wife filed reply with documentary evidence and denied the allegations of non-consummation. More than two years have passed after filing of the complaint and both husband and wife are living separately continuously for more than two years. Can the wife file a parallel divorce petition on grounds of desertion ?
Asked 1 year ago in Family Law from New Delhi, Delhi
Religion: Hindu

Wife can file divorce petition on grounds of mental cruelty and desertion

2) husband has not stayed with wife for continuous period of 2 years . Case of desertion is made out

Ajay Sethi
Advocate, Mumbai
69070 Answers
4155 Consultations

5.0 on 5.0

Hello,

A separate petition can be filed but the same can be rebutted on the ground of parallel proceedings.

But yes she has the right to file the same.

Regards

Anilesh Tewari
Advocate, New Delhi
17270 Answers
267 Consultations

5.0 on 5.0

1) Already the divorce case has been running in one court. So fir same divorce case wife could not file for it.

Ganesh Kadam
Advocate, Pune
8268 Answers
69 Consultations

4.9 on 5.0

Either it may be done mutually.

Otherwise you will have to pursue the case that has been filed by you.

If you think that there is some delay then file a petition to get the same expedited.

Regards

Anilesh Tewari
Advocate, New Delhi
17270 Answers
267 Consultations

5.0 on 5.0

Convert existing petition of divorce into divorce by mutual consent .

2) contested divorce proceedings take 5 years to be disposed of

Ajay Sethi
Advocate, Mumbai
69070 Answers
4155 Consultations

5.0 on 5.0

Hi

Go for mutual consent divorce. It is decided from both the sides that divorce is to be taken then the speediest way out is mutual consent divorce.

When the divorce petition is filed from husband's side then another divorce petition from the side of wife is not maintainable under 13A HMA.

The thing which you want to achieve is possible under 13B . FIR has to be quashed for that and it is advised that go for FIR quash and choose Mutual consent.

Thank You

Rahul Jatain
Advocate, Rohtak
951 Answers
3 Consultations

4.9 on 5.0

There is nothing wrong in wife filing a divorce case from her side with her own allegations, the court may even approached for joint trial of both the cases.

Since they are living separately away from each other for more than two years, desertion may also be a ground seeking dissolution of marriage by a decree of divorce.

T Kalaiselvan
Advocate, Vellore
58913 Answers
747 Consultations

5.0 on 5.0

What is the way out to immediately get the marriage dissolved without withdrawing FIR ?

By filing a mutual consent divorce, but he may not agree for it if you do not cooperate to withdraw the criminal complaint pending against him.

Hence you may have to go by court with the proceedings.

T Kalaiselvan
Advocate, Vellore
58913 Answers
747 Consultations

5.0 on 5.0

No parallel divorce proceeding is maintainable if one proceeding is already going on this is barred by law.

Though ground of divorce desertion is made out the wife if want a divorce can consent in same petition of husband .

Shubham Jhajharia
Advocate, Ahmedabad
20927 Answers
81 Consultations

5.0 on 5.0

See there is no way to legally dissolve marriage instantly for divorce under law there are only two procedure prescribed, divorce taken by other procedure is not valid.

So either with consent go for mutual divorce .

Or if no consent divorce has to be cosented.

Further in husband petition you can file a consent saying you want divorce but deny all allegations.

Shubham Jhajharia
Advocate, Ahmedabad
20927 Answers
81 Consultations

5.0 on 5.0

A divorce case already pending, you can't find another parallel divorce case, you being the initiator this time. Incase you're also open for separation, I'll suggest you to settle this matrimonial dispute with you husband and dissolve this marriage with mutual consent.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Your husband will not be ready for mutual consent divorce, until you settle your FIR again him.

I'll encourage you to have a dialogue with you r husband and get this dispute settled amicably.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Respected sir..

There is a procedure which is mentioned in the Hindu marriage act 1955 and for getting a decree of divorce you have to follow that ...yes you have right to file a parallel divorce petition either under section 13-A OE 13-B ...but sir that will not effect it that much as what you want to do in this case...sir the best way to desolve marriage in all the ways relates to section 13-B of HMA which is divorce by mutual consent just ask from them to get out such harassment for both the parties ...else there is equality before law you must have to follow the procedure...

Thank you

Dinesh Sharawat
Advocate, Delhi
971 Answers
6 Consultations

4.9 on 5.0

1. There is no requirement for wife to file a fresh divorce suit on the ground of desertion.

2 In your divorce suit only she can apply for counter claim and seek divorce on the ground of desertion.

3. However two years for desertion ground starts from the date of separation to the date of filing of the suit. If during pendency of the suit two years have passed then this ground would not be taken resort to.

Devajyoti Barman
Advocate, Kolkata
18131 Answers
260 Consultations

5.0 on 5.0

Hi,

In reply to your last question, it may be said that the marriage can be dissolved on the basis of mutual consent and in that situation FIR should be quashed. Further, there is no separate need of wife to file divorce petition.

Ganesh Singh
Advocate, Delhi
3274 Answers
9 Consultations

4.5 on 5.0

No, she can’t file divorce on a different ground, instead she may file her reply showing your faults.

No, till the time pleadings are not complete from both the sides, and arguments are not advanced, it can’t be dissolved.

Sanjay Baniwal
Advocate, South Delhi
4931 Answers
11 Consultations

5.0 on 5.0

Yes there is no bar in filling parallel divorce petition. Wife can also file counter petition against husband. It would have very appropriate of wife would have filed a counter claim in her written statement it would have had same effect of filing sperate petition.

Ujwal Rajan Phasate
Advocate, Nagpur
37 Answers
2 Consultations

5.0 on 5.0

You need to speak to your advocate to push the proceeding as he is not pushing it up.

In case the matter is not proceeding due to the family court file a mandamus writ in High Court to order and to quash the 498A FIR.

The HC will pass order to expedite matter with in a time frame and decide on 498A as well

Vimlesh Prasad Mishra
Advocate, Lucknow
5694 Answers
19 Consultations

4.9 on 5.0

You can file divorce petition on the ground of cruelty under section 13 of the Hindu Marriage Act. In your case husband is trying to stall this divorce petition for indefinite period and refrain you from matrimonial obligations. This act of your husband also constitutes cruelty against you.

Shivendra Pratap Singh
Advocate, Lucknow
5108 Answers
78 Consultations

4.9 on 5.0

Dear Sir,

My answers are as follows:

Can the wife file a parallel divorce petition on grounds of desertion ?

Ans: Yes, she can file but both the cases will be clubbed for convenience and issues will be framed accordingly or additional issues will be framed. The through a common judgment both divorce cases will be disposed.

What is the way out to immediately get the marriage dissolved without withdrawing FIR ?

Ans: Go for mutual divorce or just say no objection to decree the divorce petition filed by the wife. FIR cannot be closed until police files no case report or High Court quashes it.

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The following other FAQs

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Dear Sir,

Your questions are answered as follows:

1.Can she ask me to come to her place or refuse to come to my place?

Ans: No, it cannot be. Her proposal cannot be accepted by Courts.

2.Can she file false dowry and domestic violence case.?

What punishment will be given to her for false cases ?

Ans: She can file but on its failure no punishment can be given to her saying she lodged false cases, since it is family matter.

3.How long shd I wait for getting divorce if contested ?

Ans: About 2-3 years depending upon the tactics of other side.

4.How frequent can I get visitation rights of child and also during trial ?

Ans: Once a 15 days depending upon age and sex of the child.

5.Does my and parents govt job affected by it also pension settlement as my dad will retire in1 year if she files false cases?

Ans: If she includes your parents in the FIR, there will be some problems in pension settlement.

6.Does separation count from the day she left or the day I stopped visiting her ?

Ans: The day she left you that is deserted you.

7.Is it not the duty of wife to come to husband home as supreme court has granted divorce to husband ,in which wife refused to stay with in laws?

Ans: Yes, you are correct.

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The following are similar FAQs asked by my another client....for your ready reference.

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Dear Sir,

My answers are as follows: Before starting you must remember that it is big task and never fight for case. Be cool and face it.

1, I want to know what is procedure to take divorce now and how much alimony i have to give her and monthly expenses as well.

Ans: Alimony means one time full settlement money given to wife. Montly maintenance is awareded during the pendency of case. She is entitled for one only.

2. What’s are rule and regulation for taking divorce?

Ans: It is given below.

3.I want to know whether my wife can claim her rights on the property of my parents like (my parents house) where i and my family live in as alimony.

Ans: No, wife has no share only right for maintenance or alimony. If she is educated and avoiding employment then alimony will be between Rs.2 – 3 lakhs one time settlement.

4.Will court seal my parent house as alimony ? And even she is asking to sign a paper where it will written as tht I can’t meet my son also in my entire life .

Ans: No, your father property cannot be ancestratl property as such your son not entitled for any share. You should not sign any paper. You have pay monthly maintenance to your son till he attains age of majority, only if you have sufficient means/source of income.

5.Can I take my son custody after 7 years from court.

Ans: Yes, even before that.

6.If I want to do settle out court what is the chance of her asking me for alimony amount?

Ans: Rs. 5 to 6 lakhs.

7.On what bases this alimony and monthly expenses is decided?

Ans: On the basis of your personal inc

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Kishan Dutt Kalaskar
Advocate, Bangalore
4694 Answers
134 Consultations

5.0 on 5.0

Dear Querist

the wife may file a divorce petition based on desertion or base on cruelty under section 13(1)(ia) & (ib) of Hindu Marriage Act-1955 but cannot be grant divorce immediately.

the minimum time for contested divorce may be more than years.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5362 Answers
261 Consultations

4.9 on 5.0

“The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly”.

so in your case there are reasonable cause and that is cruelty, then a divorce petition by you, therefore a fresh petition is barred by Doctrine of Res Sub judicata.

As far second question is concerned the only shortest way to get rid of marriage and litigation is a petition of Divorce by mutual consent.

Uzmi Jamil Husain
Advocate, New Delhi
15 Answers

Not rated

If both the spouses want divorce, they can do so by filing mutual consent divorce, rather than filing divorce by both the spouses, as that would complicate things even more for you.

The criminal proceeding would continue, even after divorce is granted.

Siddharth Jain
Advocate, New Delhi
4981 Answers
55 Consultations

5.0 on 5.0

Hi Sir it wont be a good idea if she files a divorce petition now on the ground for desertion. The only immediate way to dissolve the marriage is going mutually, and you can have an MOU executed and can have all the terms in that regarding quashing of the FIR.

Archit Vasudeva
Advocate, New Delhi
82 Answers

5.0 on 5.0

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