• Divorce on mutual consent

Our marriage was consummated as per provision of the special marriage act in 2013. We could not sustain the marital tie and prayed for mutual divorce u/s 28 of the said act and the order was passed on 10/1/2019. When I got the certified copy I found surprisingly that it is written on the certified order copy that the marriage dissolved u/s 13B of Hindu marriage act which is a complete mistake on the judicial/clerical side. It should have been u/s 28 of special marriage act in place of 13B of Hindu marriage act. Now please suggest me what needs to be done? My lawyer is saying " divorce is divorce. It wont cause any problem." I have doubt in my mind whether it will affect my future relation. Please suggest something.
Asked 2 months ago in Family Law from Dakshin Barasat, West Bengal
Religion: Hindu

Hello,

You may move a correction application before the concerned court and the order will be modified accordingly.

A decree under a wrong section will be of no use for you.

Regards 

Anilesh Tewari
Advocate, New Delhi
14910 Answers
209 Consultations

5.0 on 5.0

You can make application to court for speaking to

minures of order 

 

2) mention that order inadvertently mentions divorce is granted under HMA rather than section 28 of SMA 

 

3) court would permit necessary corrections in the order 

Ajay Sethi
Advocate, Mumbai
59858 Answers
3619 Consultations

5.0 on 5.0

You should file an application before concerned court for rectifying of error / mistake typographical the concerned court shall pass an order it is important to get same rectified.

Shubham Jhajharia
Advocate, Ahmedabad
14237 Answers
57 Consultations

5.0 on 5.0

1. There is a dfect in the said decree of divorce passed by the concerned Court which is required to be corrected.

 

2. Hope there was no mistake made in the MCD petition filed by both of you which has promted the Court to make the said mistake.

 

3. However, you shall have to file a petition praying for restoration of the said case and make the necessary amendment in the said dcree.

 

4. It is  to be noted that you should never mention that the Court has made mistake and error. the Court shall have to amend its order.

Krishna Kishore Ganguly
Advocate, Kolkata
21476 Answers
550 Consultations

5.0 on 5.0

You can file a petition before the same court seeking rectification of the order/judgment rectifying the pointed out mistake.

You are right that this is improper, since your marriage took place under special marriage act and it cannot be dissolved under HMA.

T Kalaiselvan
Advocate, Vellore
50032 Answers
591 Consultations

5.0 on 5.0

Hello,

1) The error is a serious one and needs to be rectified by the same court that passed the order.

2) Your lawyer can make a Miscellaneous Application to the same court seeking rectification of the error in the order/decree. It is also advisable to meet the Registrar concerned and seek his suggestion before an application is filed in court..

S J Mathew
Advocate, Mumbai
2407 Answers
110 Consultations

5.0 on 5.0

1) It should have problem as special marriage act and hindu marriage act are mostly similar. And Divorce definition may be same in both acts.

Section 28 in The Special Marriage Act, 1954

 

 

 

Section 13B in The Hindu Marriage Act, 1955

 

Ganesh Kadam
Advocate, Pune
6281 Answers
46 Consultations

4.9 on 5.0

Sir i would advice you to Kindly Move and application for rectification of the same, as  it might lead to confusions in future.

 

Archit Vasudeva
Advocate, New Delhi
73 Answers

5.0 on 5.0

Go and pray by submitting a petition for correction of order copy

Aveek Bose
Advocate, Kolkata
760 Answers
3 Consultations

4.7 on 5.0

 You need to rectify the same through application in the court

Prashant Nayak
Advocate, Mumbai
7181 Answers
7 Consultations

4.8 on 5.0

If it is typing error then it can be rectified by giving application to the court of law regarding the error occurred on face it self. Time limit is with in seven days of application given to court. 

Mohammed Mujeeb
Advocate, Hyderabad
6261 Answers
3 Consultations

4.5 on 5.0

1. Marriage is not consummated as per the provision of any act. Be that as it may, this is a typographical error which goes to the root of the maintainability of the decree itself. Hence it is imperative that you file an application to rectify the decree immediately.

2. File the application for rectification immediately.

Ashish Davessar
Advocate, Jaipur
25683 Answers
730 Consultations

5.0 on 5.0

  1. As per the information mentioned in the present query, makes it clear that there has been a mistake in the divorce order, which according to my advice should be rectified.
  2. Though it is right that divorce is divorce, but the ground on which it has been taken, must be clearly written in the order, otherwise who knows if your wife happen to challenge the same on the ground of incorrect order and she may say that she was contesting the case.
  3. There is no surety that your wife may do that, but please go and get it rectified.
  4. Move an application under section 152 of CPC, seeking modification in the order before the same judge, and get it rectified/ clarified.

Sanjay Baniwal
Advocate, South Delhi
3807 Answers
7 Consultations

5.0 on 5.0

The marriage was solemnized as per the special marriage act and therefore the divorce can only be obtained under the above act. The decree obtained has no value and is unenforceable. You have to filea correction application before the court and the court shall correct the order.

Regards 

Rahul Mishra
Advocate, Lucknow
2914 Answers
9 Consultations

5.0 on 5.0

Well, it cause no problem but defect must be clarified when it is easily noticeable. File application u/s 152 CpC in court.

Yogendra Singh Rajawat
Advocate, Jaipur
8959 Answers
8 Consultations

4.7 on 5.0

Dear Sir,

Nothing to worry, the following information may kindly be read:

Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954.

For this section to apply there are certain requirements which have to be met and fulfilled by both the parties to the divorce which can be stated as follows:

  • The parties have been living separately for a period of at least one year
  • They have not been able to live together, and
  • They have mutually agreed that marriage should be resolved

The Supreme Court in 2012 ruled that the waiting period of six months can be waived off and a Marriage Laws Amendment Bill, 2010 was proposed which replaces the words "not earlier than six months" in Section 13-B with the words "Upon receipt of a petition." However the bill has not been yet passed by Lok Sabha as there was strong opposition to the bill and is still under a conflict.

We can conclude that prior to this Act; there was no provision for Divorce as this concept was too radical as the marriage was considered as a sacred and divine bond. In earlier marriages wives were the victims and were always at the mercy of their husbands and in- laws family and had no source to raise their voice and revolt. But we can notice that there are pros and cons of every law. So the lawmakers of our country have a hard role to perform to see the future implications and act in a cautious manner.

 

Netravathi Kalaskar
Advocate, Bangalore
2061 Answers
5 Consultations

5.0 on 5.0

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