An Advocate’s diary- A trip down the memory lane (Adentrarse en el mundo de los recuerdos)

Just like any other profession, Lawyer’s profession too has many interesting incidences. These incidences or happenings either enhance your chances of winning a suit or the suit being dismissed by the court completely on one or the other legal ground as pointed out by you. I, being a litigation lawyer encounter many such events and incidents which I have decided to pen down from now onwards to share with my friends & colleagues.
Few days back a person (Indian) from USA contacted me to represent his Divorce & Maintenance suit filed by his wife in a District court of Mumbai as wife along with their daughter was staying in Mumbai to which I agreed naturally and filed my vakalatnama (Advocate’s Authorization). When I received the copy of the Petition filed by opposite lawyer, I was surprised to find that the whole Petition was wrongly drafted by the lawyer who was a well-known lawyer of that area and everyone knew of the Lawyer and the Law Firm representing the wife (opposite party) as compared to my known status.
It was a Divorce cum Maintenance Petition filed on the basis of “The Hindu Marriage Act, 1955”. Off course, both the parties (husband & wife) were Hindu by birth and remained so even after and at the time of filing the instant Petition. However, their marriage was a “Registered Marriage” (Court Marriage) and no traditional rituals were performed as admittedly accepted in the instant Petition. A “Registered Marriage” falls under “The Special Marriage Act,1954” even between two Hindus, which is entirely different Act than “The Hindu Marriage Act,1955”. For a “Hindu Marriage” one has to marry according to Hindu Traditions and Rituals and also perform ‘Saptapadi’ (saat phera) in majority of the cases. The most important legal point is that when one marries according to “The Hindu Marriage Act”, he/she will have to seek Divorce under this Act only and when one marries under “The Special Marriage Act”, he/she will have to take Divorce under this particular Act and no other Act. A Registered Marriage before designated Marriage Registrar is always performed under “The Special Marriage Act, 1954”.
I have pointed this legal Defect in my “Reply”, and requested the Hon’ble Court to order for filing a fresh suit (dismissing the present one) since amendment of the Petition for using a “Different Act” (which is a legal defect) under provisions of CPC should not be allowed. Now it is entirely Court’s discretion to allow amendment or order for filing a fresh suit.
Rajni Sinha
Advocate Bombay High Court


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