Instead of your son filing divorce he should contest cases filed against him. Only upon mutual settlement, mutual divorce should be filed
How can I file divorce suit once I have withdrawn the same
The divorce suit was filed in Coimbatore where my son lived with her wife for the last time between 28/02/2015 to 02/02/2016. She left her matrimonial home on a short holiday with a promise to return. The ticket for her journey back home was mailed to me via email by her father who requested me(father-in-law) to drop her at the airport as my son was away at Vizag on official assignment lasting a week. Her father wrote to me that she was making the journey at her own will and she would be received by her parents in Kolkata airport. She never came back as per promise. My son filed a divorce suit in February 2017( after one year ) in Coimbatore which she never contested until it was at an ex-parte stage. They appealed to Supreme court for transfer which got dismissed. Now she has attended once and is asking for reimbursement of expenses. My son has prayed to the court for withdrawing the case as he is not in position to meet all the expenses. She has already filed suits under 498A , 406 , crpc 125 and also one under domestic violence. She has also filed multiple multiple claims for interim maintenance. How can my son file divorce suit in Kolkata which is her native town where marriage took place?
Asked 6 years ago in Family Law
Religion: Hindu
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11 Answers
Husband can make application for withdrawal with liberty to file fresh petition .Court would permit husband to withdraw divorce case filed in Coimbatore
2) fresh divorce petition can be filed in Kolkata as marriage was solemnised in Kolkata
Since he has withdrawn voluntarily he can file a fresh petition for divorce under Section 13(1)(ia). You need to appoint a local advocate. Secondly you need to contest all the cases which is filed by her. Res judicata will not be applicable Since no judgment is passed in divorce proceedings. Secondly if your son is not in a position to give her maintenance or expenses it needs to be pleaded specifically.
It's advisable to fight the case in Coimbatore since it will be burden to your son to travel and also expenditure will be more.
1. If your son wanted the divorce case to be filed in Kolkata then he should have consented to her prayer before the Supreme Court for the said transfer.
2. However, he can file an application for withdrawing the case filed in Coimbatore with the leave to refile it at Kolkata or any other place found suitable to him.
3. He shall have tom contest the cases filed by his wife fittingly.
Yes, he can also filed a divorce case from Kolkata.
1. Since a suit is already filed in Coimbatore then filing the same suit in another city is possible only if you withdraw the present suit and file a new one on new cause of action unless the court allowed you to withdraw the suit with liberty to file once again on the same cause of action.
2. During hearing of transfer suit in supreme court you could have conceded her demand to transfer it in Kolkata.
3. Since most of the cases are pending in Kolkata it is better of you conduct the divorce suit in Kolkata also to avoid conflicting decision.
Has the ex parte decree been passed already in favour of your son or not? If the divorce petition is still pending then your son is at liberty to withdraw it but after withdrawal he will be able to file it only if there is a fresh cause of action in his favour i.e if there is a fresh instance of cruelty.
Even if your son files for Divorce in Kolkatta just to avoid paying travelling expenses, that is not going to relieve him from the brunt of the maintenance orders which are bound to follow in his Petition for Divorce and other matters, irrespective of the Courts. Though Kolkatta has jurisdiction, unless and until your son is based in Kolkatta, there is no merit in withdrawing from Coimbatore and filing in Kolkatta. What your son can also do is to withdraw his Petition for Divorce and not file for sometime till the criminal charges against him are decided. Then using his acquittal, he can file for Divorce afresh and on new grounds including desertion.
Either ways, in his Application for withdrawing his Petition, your son should seek liberty from Court to file afresh new proceedings at a later stage
Every petition under the Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction –
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or
(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
If he has withdrawn the divorce case in Coimbatore then he can file a divorce case in Kolkata.
He may take the assistance of any lawyer from Kolkata of this forum or can approach directly to a lawyer at Kolkata.
When you withdraw you can do the same by way of liberty to file afresh. Therefore you can file the same again if needed.
