Sir or Madam, I'm Bala. Background: We got married in 2014 and since the first month, we had issues and my wife literally would have mentioned divorce in 100s of occasions. We scarcely lived together for a total of 6 months, rest of the days she would create an issue and will leave to her mom's place. In 2016 October, she wanted to go home as her mom is not feeling well. So we visited and she urged to stay back, which I agreed. After that, she never came home. It's been 1 year since, I tried to make contact, and she is avoiding it and have been asking for divorce. Even elders from my family visited her place, but no use. I recently came to know that she is posting pictures of herself and someother guy as her boyfriend. Her father is a lawyer. Now, they called us up and said that, this marriage will not work out, so we will get divorced. I agreed. Now the issue starts: They say that they will write up the draft and sign it and give us, which we will have to apply in court and get ex-parte decree. They say they are not willing to come to the court as it is a prestigious issue since they are also in the same profession. They are asking for 5 lakhs rupees. They say that they won't mention even the 5 lakhs as alimony. I told them, that either they will have to mention it alimony or come in person to the court and say that they don't want alimony in front of the judge to be recorded. They are not ready to do either. All they say is, they want divorce and they will sign the draft. No mention of alimony. I'm afraid, if I do that, whether in the future they might appeal on it to get alimony. Can you please advice, whether should I have to take the draft and file ex-parte or make them appear in court? Secondly, is there any way that the ex-parte decree cannot be revoked later? Please advice.
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File for divorce on grounds of mental cruelty
2)if wife does not contest you will get exparte divorce
3) if wife wants alimony let her file claim to said effect
4) don’t pay Rs 5 lakhs in cash
5) divorce petition filed by you can be converted into divorce by mutual consent
You can take divorce on the ground of adultery, but you have to prove that she has been living with her boyfriend in such a cozy relationship that may infer extramarital relationship.Your wife is agree that marriage will not work out then it would be better for you to move a petition for mutual consent divorce under section 13b Hindu Marriage Act. Getting ex Parte decree is not a good idea because it is voidable at the instance of your wife.
It is settled law that when wife is guilty and divorce is granted due to her guilt then she is not entitled for alimony. So no need to mention 5 lakh as settlement in lieu of alimony. The Supreme Court has held that an adulterous wife is not entitled for alimony.
And this condition you should file a divorce petition on the ground of adultery or move mutual consent divorce without giving any money for settlement.
Dear Querist
It will be better for file Mutual Consent divorce and before filing the divorce execute a MOU/Compromise Deed with her and filed divorce with that MOU/Compromise deed in which all the terms and condition should be mentioned.
ex-party divorce has no value, they may file application for set aside within 90 days from the date of knowledge hence it is not good idea to get ex-party divorce.
the amount should also be mentioned in the compromise deed with the conditions that this amount is mutually agreed to parties regarding her past present and future maintenance/alimony and she has no other rights left over the husband.
No need to believe on them in this situation, secondly the mutual consent divorce can not be granted until and unless both the parties appear before the court and record their respective statements.
Feel Free to call
Dear Mr. Bala
1. Reading your above information, I understand that, your wife and her family members are taking you for a ride.
2. You will be facing the wrath of your wife and her family members more particularly your FIL who you say is an Advocate if you yield to their instructions. They are playing safe and pushing you.
3. What all you said in your notes is correct i.e., your apprehensions. Assuming that you get Ex-parte Decree there is high probability to question / challenge the same and you may face the music of opposite party and court may have soft corner to your wife also.
4. If both of you are ready to get the matter compromised, go for mutual consent divorce, utmost both of you may have to go to court a maximum of 3 to 5 times depending on the situation.
5. Do not yield to their pressures.
6. Other way round, you may send a notice for Restitution of Conjugal Rights to your wife. The same will help you have some support going forward.
7. All said and done, mutual consent divorce is the best possible option for you.
8. Prevail upon them through your family members / well-wishers to get the matter accordingly.
Good Luck !!!
Some simple and straightforward suggestions for you;
1. Do not give alimony if not mentioned in papers.
2. Rather than ex-parte divorce go for mutual consent, and if they do not agree over that than file a divorce petition under 13A.
3. Donot settle with your wife or her parents outside the court.
Dear Everyone! Thank you very much for all the replies and your advices were really helpful! I have understood, 1. that exparte divorce is only valid until my wife wants to appeal against it and 2. cash transaction must be avoided at all costs. 3. Best way is to do mutual consent. I just have one follow up question, so let me make use of it well sir. Since they are not willing to do mutual consent, even my family is persuading me to take the exparte as this is the earliest way out. I was informed that after the exparte decree, within 1 month an advocate appear on their behalf and consent their acknowledgement and acceptance of the order to the court, and secondly if the money was transferred online to my wife's account directly from my account, there shouldn't be any problem in the future. 1. Is this true? 2. Can this be done? 3 Can the exparte decree be protected by doing the above? Please advice. Thanks in advance. PS: My father-in-law says that he is willing to give in writing about receiving the 5 lakhs outside the court and not within court papers.
1)even if transfer money online to your wife of Rs 5 lakhs she can again claim maintenance from you
2)you need in writing from wife that Rs 5 lakhs has been received as alimony in full and final settlement of her claim
3) it should form part of the consent terms in MCD
1. The ideal solution for both of you shall be to jointly file a Mutual Consent Divorce petition on agreed terms which will be decided within 6 & 1/ months from the date of its filing.
2. In the above event, both of you shall have to physically appear before the Court the Court on the date of the 2nd motion after 6 months of its filing to confirm that you still want divorce.
3. The idea of fling a divorce suit against wife drafted by the wife's father and then get the ex-parte divorce is unusual and improper. Make a straight attempt to get he divorce by jointly filing MCD.
1.online transfer of money gives you proof of money transfer not the proof that you have given that money as alimony.
2.ex-parte can be acknowledged and accepted by them but appeals can still be initiated.
3. If you are giving the money as alimony, in my advise please get it mentioned in the court papers.
1.No, it is not true. he might file an application/appeal on a later date challenging the ex-parte order with a petition prying for condonation of delay for late filing, on some ground.
2. She can challenge the ex-parte decree later on
3. Sending her money does not restrain her in filing an application challenging the said ex-parte divorce decree.
Dear Mr. Bala
In response to first three points:
1. Appeal by your Wife:
- You will be taking un-calculated risks by opting to this mode.
- Under this mode when the opposite party fail to appear and contest the case, the court
upon being convinced passes exparte decree.
- Not so easy, more particularly in matrimonial cases (Beware !).
2. Going by latest developments in banking, finance and IT laws by Modhi Ji's Government – no cash transactions please.
3. There you are – no second option than go for mutual consent.
Word of Caution:
Please do not be under misconception, it is not a thing which is available in the shelves of Departmental Stores, you go pickup your chosen thing, pay for it and walkout.
It is not that easy, more particularly, in matrimonial cases, you need to convenience the court beyond reasonable doubt to get your desired exparte decree.
Reply to your Query:
1. According to the information shared by you, your wife and FIL are not interested to come to court.
As sated by you, what is the Guarantee that an Advocate will come and acknowledge the exparte decree (wife and husband are the parties to take the call and appear in Court. An Advocate is an Amicus Curie who will assist the parties and court).
Instead, both of you can as well file Mutual Consent application and close it amicably without any fuss. It appears they are trying to take undue advantage of urgency shown by you.
2. Please do not take deviations, follow due process of law.
3. Chances are remote. You will be taking un-calculated risk.
4. You mentioned your FIL will give receipt for 5 lakhs. How will you account for it under IT Act etc.
My Opinion:
A. Please do not deviate from due process of law.
B. Follow due process of law.
C. You file for divorce, if they are not coming to court. Upon serving the notice they will come to court and with court’s permission it can be converted to Mutual Consent Divorce.
D. The sum and substance of the Mutual Consent Application will be “all claims have been settled by both the parties outside and each party do not any claim of whatsoever nature against the other party”.
E. No need to mention the money component also.
F. Your choice please ……..………
Good Luck,
EX - parte decree of divorce is not easy, this can be possible only after submitting wrong facts about u before judge and you are intentionally avoiding services of court summons, and hence not advisable,
If there`s no mention of alimony in the petition , than you will left in limbo and anytime in future possibility of demand of alimony cannot be negated.
mutual divorce advisable. n keep those pics and facebook post as evidence , in case they not agree for mutual divorce n may file domestic violence case, you will at safe side than with such proofs.
Hello,
I would not advise you to pay anything in cash, file a divorce petition on the ground of cruelty and if at all your wife want some alimony then let her file a claim to that effect.
If you are transferring the money online then get the same jotted down in the mutual consent divorce petition as that she is barred to claim any maintenance in future.
Do not pay any money without any communication with regards to the same before any court of law.
Regards
You could send her a legal notice expressing your intent of obtaining divorce by mutual consent and warning her of the consequences in case she does not agrees for this.
You never know, this might just work.
Can you please advice, whether should I have to take the draft and file ex-parte or make them appear in court?
Secondly, is there any way that the ex-parte decree cannot be revoked later?
Please advice.
There is no such thing like filing an exparte divorce in the beginning itself.
Since her father is an advocate he should be mentioning that yo file a contested divorce case in the court and after receiving the summons she will not appear before court so that you can get exparte divorce.
For this their demand of Rs. 5 lakhs is nothing but fleecing you.
You do not agree for their draft divorce.
You can file a contested divorce caase by yourself on the grounds of cruelty and desertion.
Let she come and contest the case which can be prosecuted on merits.
Since there are possibilities for her to claim maintenance anytime after this divorce, you do not agree to pay any amount to them at this stage.
Since they are not willing to do mutual consent, even my family is persuading me to take the exparte as this is the earliest way out.
I was informed that after the exparte decree, within 1 month an advocate appear on their behalf and consent their acknowledgement and acceptance of the order to the court, and secondly if the money was transferred online to my wife's account directly from my account, there shouldn't be any problem in the future.
If you file a contested divorce case, the court will serve summons on the respondent. The respondent if refuses the summons or is not appearing before court after receiving the summons, then the court would set her exparte and an exparte decree would be passed after recording your evidence
All these process will take at least three months time from the date of filing.
There is no question of her lawyer appearing before court and acknowledging the summons, this becomes a contest case and the court will order for trial after getting a counter filed by them.
In such a case it may take years to dispose this case.
1. Is this true?
It is misguidance,
2. Can this be done?
The court procedures are different from what is told to you.
3 Can the exparte decree be protected by doing the above
An exparte divorce can be reopened anytime by fling a set aside petition by the opponent