Petition filed on Section 11 of 5(i) for maintainability
1 Answer
Dear Client,
The filing of a suit under Sections 11 & 5(i) of the Hindu Marriage Act of 1955 is maintainable in case you can prove that there was a prima facie case for non-dissolution of the respondent's earlier marriage according to the laws of India prior to yours, although the maintainability as well as success will depend upon the facts of the case, including the recognition and enforcement of the ex-parte divorce decree issued by Australia under Section 13 of the Code of Civil Procedure of 1908 as per the judgment of the Supreme Court. Whether the divorce proceedings will be stayed or not, that is up to the court's discretion, and it will depend upon whether the decision of the nullity suit has any direct impact on the divorce proceedings. With regard to the petition filed under Section 24 of the Hindu Marriage Act, the court will have regard to the earnings and financial capacity of both the parties and if the wife has adequate means of her own, she may be denied interim maintenance. If the marriage is ultimately found to be null and void under Section 11, it would have an impact on those rights that would be based on the marriage being valid, but the right to maintenance would be decided according to the particular statutory provision and judicial precedent relied on. As both issues are in dispute, it is not possible to predict how each one will be resolved.
I hope this helps and if you have any further issues do not hesitate to contact us.