Nitish Banka

    • How Divorce when you have no evidence?

    Story of section 13(1-A) HMA

    Gene really most of the divorce cases are filed under section 13(i-a or b) i.e desertion and cruelty.

    The evidence of both cruelty and desertion are difficult to prove under the wake of false Dowry and Domestic Violence case and for many years couple do fight these cases but no fruitful results comes out under the wake of no sufficient evidence to get divorce a couple can produce only one or two incidences which are not sufficient. As evidence must be such that it becomes difficult for the spouse to cohabit together.

    Now another way is to seek divorce under Section 13(1-A) of the HMA

    Now the requirements under section 13(1-A) of the HMA, the spouse has to first seek a decree of either judicial separation or RCR and then after the decree is granted and even after 1 year the cohabitation does not resume then it is a ground for seeking divorce. No other evidence is required, therefore makes divorce easy. An additional aquittal in 498a case and 406 IPC will also help. See the case below.

    Smt. Usha vs Mahesh Kumar on 18 June, 2018

    The wife-appellant as per her own admission is living separately since 1991. Though, she lodged a criminal case u/s 498-A and Section 307 of the IPC alleging cruelty in marriage and attempt to cause murder against the husband, the same ended up in acquittal of the husband. This was also affirmed in appeal by the High Court of Madhya Pradesh. As such, no reasonable cause can be made out on the part of the appellant to leave the matrimonial home and stay away since 1991. On the contrary, the efforts for restitution of conjugal rights on the part of the respondent-husband have failed despite a decree of restitution of conjugal rights in his favour. The instant suit has been instituted only on the ground available u/s 13(1-A) (ii) of the Hindu Marriage Act, 1955. No grounds of fault are alleged or required to be established in such a matter on the part of the aggrieved spouse. Once the ingredient of Section 13(1-A) (ii) of the Act of 1955 has been established by evidence on record showing failure of the appellant wife to join the society of the husband and cohabit with him, the respondent husband had all the reasons to seek dissolution of marriage under the aforesaid provisions. The learned court has appreciated the evidence on record in a proper manner which does not suffer from any perversity.