MUMBAI: A married person cannot take advantage of his or her own wrong to seek divorce, the Bombay high court said while dismissing a woman’s case for grant of divorce on her admission of having deserted her husband. The woman, Malini Videshi (name changed) had challenged the Bandra family court’s refusal to pass divorce orders on her plea. “The Family Court was right in holding that the petitioner was trying to take advantage of her own wrong. Hence, petition fails and is dismissed,” Justice R G Ketkar of the HC said last week. The law allows a married person to seek and get a divorce if his/her spouse admits to having deserted the other for two years. But when Videshi, who first filed for divorce under the Hindu Marriage Act on grounds of cruelty and later sought a divorce order on her own admission that she had deserted her husband for over two years, the family court and later the HC said the law does not allow her to take advantage of her own wrong?desertion, in this case. Videshi, connected to a celebrity family, had also filed for custody of their minor son. The couple married in 1999 after a courtship of six years. She filed for divorce in 2013. Her husband, Rakesh Kapoor (name changed), filed a counter claim and also sought divorce on grounds of cruelty, desertion and harassment by her. He too sought custody of their son. After his claim, she moved the family court last March, admitting that she had deserted him for over two years and sought a divorce order under provisions of the civil procedure code. Her lawyer, R T Lalwani, also said that it met requirements of section 13(1)(i-b) of the Hindu Marriage Act. The section lays down that a marriage may, on a petition presented by either wife or husband, be dissolved on the ground that the other party has deserted the petitioner for a continuous period of at least two years immediately preceding the plea. The HC, dismissing the wife’s appeal, said it was a “self-serving admission” by her and does not help her. Justice Ketkar said that under CPC provision of Order 12, Rule 6, relied on by the wife, the party who seeks divorce decree must rely on admission given by the opposite party and cannot seek a decree on its own admission. Lalwani sought an eight-week stay on proceedings pending in family court to enable an appeal against the high court judgment. Advocate S R Moray, who appeared for the husband, opposed it, but the HC said the “request is reasonable” and granted the stay.
TOI | Mar 16, 2015
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