• Divorce in High court

Hi, 

My husband filed a divorce application in his hometown and I filed a transfer petition in High court to transfer it to my hometown. 

Now my high court lawyer says that judge in high court can pass divorce decree in high court itself, if both parties agree. 

1. I filed a transfer petition only in HC. So can HC pass divorce directly based on transfer petition?
2. or is it direct the family court to resolve the matter ?
3. I also have a case under section 306 filed against them. can I withdraw the case anytime if i want to ?

Thanks,
Asked 1 year ago in Family Law
Religion: Hindu

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13 Answers

1. & 2. High court can negotiate the matter, and if parties arrive to a settlement agreeing to dissolve their marriage, then high court can record their statement and can direct parties to approach trial court and to file joint petition for divorce by way of mutual consent. As such, the high court itself can not dissolve marriage. So opinion of your lawyer is not correct. 

3. If there is FIR then high court can be approached for quashing of FIR. However, if it is complaint case then you can withdraw your complaint. 

Siddharth Srivastava
Advocate, Delhi
1348 Answers

You cannot withdraw case under section 306 of IPC 

 

2) husband can file petition for quashing in HC based on settlement arrived at between parties 

 

3) it is doubtful that HC would pass orders for dissolution of marriage in hearing on transfer petition 

Ajay Sethi
Advocate, Mumbai
96937 Answers
7821 Consultations

1. No, High court cannot pass any such order.

It will concentrate only on the subject matter before it.

2. Yes, family court.

3. If it is a non compoundable offence then you cannot withdraw it.

 

T Kalaiselvan
Advocate, Vellore
87138 Answers
2339 Consultations

  1. Your lawyer is mistaken. High Court doesn't adjudicate over matrimonial issues. It has to be heard by the family court. High Court can hear and adjudicate upon the issue of transferring the case to family court in another state. 
  2. As no suicide has been committed, the case u/s 306 doesn't stand judicial scrutiny. 
  3. Kindly pay me a visit for any further assistance. 
  4. ९८२०८९७८८४ (nine eight two zero eight nine seven eight eight four) 

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1570 Answers
5 Consultations

1. If you have filed the transfer petition , then the High Court cannot pass Divorce decree on transfer petition. 

2. Yes

3. The offence under Section 306 of the IPC is non-compoundable, meaning it is not allowed for settlement by a regular court , however the other party can approach the High Court for quashing /Cancelling the FIR. 

Mohammed Shahzad
Advocate, Delhi
14513 Answers
221 Consultations

1. and 2. In all probability the HC may only order transfer of the case. To avoid complications, if you both agree, you may file a petition for divorce by mutual consent at the family court within which you reside. 

3. Yes, you may withdraw your complaint if you do not wish to proceed further.

Swaminathan Neelakantan
Advocate, Coimbatore
2914 Answers
20 Consultations

It will send it to family court

Prashant Nayak
Advocate, Mumbai
32479 Answers
201 Consultations

Hello, 

  1. You are right, the High Court cannot pass an order of divorce when you have filed a petition to have the divorce petition transferred to where you are.
  2. The High Court can only pass an order on the application either allowing it or rejecting.
  3. You can't withdraw it if an FIR has been registered as it is a non bailable and non compoundable offence. With your consent,  they can get it quashed in the High Court,else they will have to face the trial.

S J Mathew
Advocate, Mumbai
3595 Answers
175 Consultations

1. High Court can not pass decree of divorce based on your said transfer application.

 

2. The family court where the High court will decide to transfer or refuse to transfer will decide the divorce petition filed by your husband which you shall have to contest fittingly.

 

3. You can withdraw the case filed by yu anytime yo want to.

Krishna Kishore Ganguly
Advocate, Kolkata
27457 Answers
726 Consultations

If both agree, file ‘agreement settlement’ in High Court  on agreed terms praying for quash of complaint under Section 306. High Court  will remand the matter of trial Court to pass divorce decree on the terms agreed and also order quash of criminal case. High Court  will not pass decree of divorce.

Ravi Shinde
Advocate, Hyderabad
4195 Answers
42 Consultations

Reply to your queries;

1. If and only if both of you agreed for the same then the High Court has powers to do so.

2. If not as above in 1. It may direct the family court to resolve it

3. The details of victim was not mentioned by you. ( But 306 case can't be withdrawn)

S Shree Narasimhachaary
Advocate, Chennai
21 Answers
4 Consultations

No.

If transferred granted than matter will hear by family court. 

can I withdraw the case anytime if i want to - NOps

Yogendra Singh Rajawat
Advocate, Jaipur
22991 Answers
31 Consultations

Transfer Petition and Divorce Decree: A transfer petition in the high court typically requests the transfer of a case from one jurisdiction (such as your husband's hometown) to another jurisdiction (such as your hometown). The purpose of the transfer petition is to have the case heard in a more convenient or suitable location for one or both parties. The high court can decide whether to transfer the case or not based on the circumstances presented. However, it's important to note that the high court typically does not directly pass a divorce decree. Instead, it may transfer the case to the appropriate family court for further proceedings.

 

Role of the Family Court: Once the case is transferred to the family court, it will be responsible for conducting the divorce proceedings and making a decision on the divorce. The family court will consider the evidence presented by both parties, listen to arguments, and issue a divorce decree if it determines that the grounds for divorce are met. The family court has the authority to decide on divorce matters unless there are specific circumstances where the high court may exercise jurisdiction.

 

Withdrawal of Section 306 Case: Section 306 of the Indian Penal Code pertains to abetment of suicide. If you have filed a case under this section, it is a criminal case and separate from the divorce proceedings. Whether you can withdraw the case depends on various factors, including the stage of the case, the consent of the court, and the specific laws in your jurisdiction. It's advisable to consult with your criminal law attorney to understand the implications and procedures for withdrawing the case.

 

 

Anik Miu
Advocate, Bangalore
10168 Answers
120 Consultations

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