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Spouse’s consent for divorce must keep till stop of marriage, says HC

Spouse’s consent for divorce must keep till stop of marriage, says HC


The Bombay excessive court docket (HC) these days held that a partner’s consent for divorce via mutual consent should be actual and have to keep until the date divorce is granted.
Justice Anuja Prabhudessai stated that a petition for divorce through mutual consent that invokes provisions of the Hindu Marriage Act must be filed using the spouses simultaneously and must meet three simple necessities. She said that spouses ought to have lived separately for 12 months or earlier than filing the software, they need to be no longer capable of living together, and they must at the same time agree that the wedding is to be dissolved.

HC began hearing a plea against a decreased courtroom order. A female had appealed earlier than the district judge in Kolhapur in opposition to a decree of divorce granted by using a trial courtroom in October 2005. She contended that the divorce petition was filed without her consent and that the trial court docket dissolved the marriage without ascertaining the plea’s averments or the genuineness of her support.
In October 2014, the district chose to strike down the trial court docket’s decree. Following this, the girl’s husband approached HC, declaring that the woman had consented to divorce but remained absent at some point in trial courtroom lawsuits.

Last week, Justice Prabhudessai upheld the district court docket order. She stated the trial courtroom had proceeded on the idea that consent became irrevocable as soon as given. “Suffice it to mention that [the trial court’s] view is unsustainable…Consent needs to preserve as on the date of the decree.”The HC bench noted provisions of the Hindu Marriage Act that cast a statutory obligation at the circle of relatives court to ascertain the genuineness of the averments within the petition, the existence of mutual consent, and consent not obtained by pressure, fraud, or undue impact.

The mere grant of divorce (through the husband) could not absolve the previous husband and others concerned from crook misdeeds allegedly devoted by using them towards the aggrieved lady at some point of domestic dating among the parties. According to provisions of the Domestic Violence Act, 2005, it isn’t always vital that the aggrieved female must have a wedding and present with the respondent-husband when filing a utility. No difficulty is prescribed for this type of girl seeking relief below the Act.

Dealing with a petition filed by using a husband and his mother in search of to quash the case filed against them with the aid of the divorced wife earlier than the lower courtroom beneath the Domestic Violence Act, the High Court has opined that “past domestic violence can not be worn out at the mere taking or provide of a divorce, opposite to crook jurisprudence. No one could escape the rigor of the regulation beyond criminal misdeeds until the problem is compromised as per law or regulation itself permits it. Every character case’s ordinary data and occasions would be the guiding aspect in determining the case.”

The petitioners’ case is that no provision of ‘The Protection of Women from Domestic Violence Act, 2005’ permits a divorced wife to seek relief underneath the Act. The respondent girl ceased to be the first petitioner’s wife (former husband) long before submitting the case earlier than the lower courtroom. Consequently, no floor change was made for the respondent girl to keep the home violence case. Continuation of proceedings in any such case amounts to abuse of regulation because the topic became not maintainable as soon as there has been no current domestic relationship among the parties at its filing.
No hindrance

After hearing the case and perusing the fabric on the report and numerous court docket judgments, the HC made it clear that it is not important that the woman ought to have a wedding subsisting and existing with the respondent individual at the time of submitting of software beneath Section 12 of the Act. No predicament is prescribed for the aggrieved female to seek relief beneath the Act. ‘Domestic dating’ is sufficient for the stated purpose. If those in this sort of dating live collectively or have lived together in a shared household, it’d entitle the relaxation of renovation below Section 2(d) of the Act. In the case of Khushi Mohd vs. Aneesha, the Rajasthan HC has held that a divorced Muslim wife is likewise entitled to comfort under the Act, 2005, besides the treatments available to her under the Muslim Women (Protection of Rights on Divorce) Act, 1963, the Court referred to.

The Court also noted the SC judgment in the Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori case. Relying on the above judgments, the HC held that the home courting among the respondent-spouse and the petitioner-husband did now not end upon her obtaining a divorce, and the domestic violence case is maintainable with regards to the past acts of home violence allegedly dedicated via the petitioner. And disposed of the petition.

Elizabeth Coleman

I am a lawyer by profession and a blogger by passion. I started blogging to express my views on various issues.The blog has now become one of my passions. After seeing so many of my friends and colleagues using blogs for their business purposes, I decided to share my views through my blog.I love reading other people's blogs. I am trying to write one every day, and sometimes when I have time I write two or three posts per day.