Your Q, His A

However, you can approach the lawyers or send a letter to the court suggesting your solution, in which case the Court may appoint you as amicus curiae friend of the court. In the alternate, as this is a Public Interest Litigation and the people at large will have a stake in its outcome, you can also file a petition as an intervener and state your solution as a prayer before the Court.

8226; I was married on February 2001, as per Hindu Vedic system. The marriage was not registered. Upon my wife8217;s insistence, we made a divorce deed supported with an affidavit signed by the Metropolitan Magistrate in October 2002. She continued to stay with me till January 30, 2004, after which she left home and informed me over the phone that she has had a court marriage. Later on I came to know that she had married in February 2003 and had got the marriage registered on January 30, 2004. Thus, she had continued to stay with me even after the second marriage. Now she is living with her second husband. Is my earlier divorce legal? Do I have to file it in Court to make it legal?
Anonymous

The Hindu Marriage Act, 1955 provides for divorce by mutual consent by a decree of divorce, on the presentation of a petition by the parties to a marriage together, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Thus, apart from the consent of both the parties, the separation for a period of one year or more between the parties is also essential. For a divorce through mutual consent, it is presupposed that cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end, because of a total breakdown of matrimonial relationship.

It is not clear from the facts stated by you whether you have obtained a decree of divorce by mutual consent in accordance with the Hindu Marriage Act as you are referring to an 8216;8216;affidavit signed by the Metropolitan Magistrate8217;8217; instead of a court8217;s decree. Assuming that your divorce is procedurally valid, it can still be challenged on the grounds that it did not fulfil the requirements for a divorce through mutual consent under the Act if you were not living separately before the passing of the court decree.

Where the spouses were living together at the time of the divorce and continued to live together after the deed of divorce, there is no ground for divorce and it may subsequently be challenged by any of the spouses on grounds of fraud. In the event that the divorce decree has not been passed, then your marriage has not been dissolved and is still subsisting. Accordingly, the second marriage of your wife can be nullified.

8226; My brother-in-law based in Hyderabad is bent on going to USA. He contacted a lady in Hyderabad who assured him a Visa for Rs 5 lakhs and he paid her the money in August 2003. The lady gave him a post-dated cheque for 5 lakhs and told him that it would take three months before she could get his passport stamped. She failed and now she refuses to repay the money. The post-dated cheque has also bounced. A case was filed in the criminal court in November 2003. A notice was sent to her and the case was postponed for hearing in March 2004. The notice sent to her was returned as 8216;8216;addressee not known8217;8217; but we have managed to trace her with great difficulty. In March 2004, the Judge wanted a police report confirming her address and fixed the date of the next hearing in October 2004. Why is the hearing being postponed for such long durations? What are the options available to me considering that we just want the money back? We do not want the lady to be arrested as she has two small kids. Can we stop her from leaving India and recover the money?
Madhukar

Delay in the hearings is due to the large number of cases that are before any court and does not have anything to do with the merits of your case. You have not disclosed the grounds, which have been taken in the case, but from the facts stated by you, the case seems to be filed as bouncing of cheque under the Negotiable Instruments Act. Filing the case under this Act is more beneficial for you as the focus would be on getting your money back rather than convicting the lady, which as you have stated is not your primary concern. Under this Act also, the Courts have the power to order imprisonment, or impose fines or both. It is up to the Court however, to decide the matter of imprisonment and you cannot choose the relief to be asked before the Court.

You should however, seek an injunction to prevent her from leaving India, as otherwise, it would be difficult to enforce the relief given to you by the Court. You can recover the money only after the Court has decided the case on merits.

As you have traced the address of the lady, you should file an application for the amendment of your plaint or an interim application and change her address in the plaint so that a notice can be served on her. In the failure of a notice to be served, the Court can also in some instances presume that the notice has been served and proceed with the case ex-parte, that is in the absence of the defendant.

Rajiv K. Luthra is the founder and senior partner of Luthra and Luthra Law Offices. This column provides general observations on applicable laws. Due to paucity of space, it does not and cannot substitute legal advice specific to an issue. Readers are requested to consult their lawyer for specific legal problems. The author and publisher shall not be responsible in case any damage or loss is caused to any person as a result of any action taken on the basis of the opinion expressed here. Readers can send their questions to luthraluthra.com