• High Court vs Lower Court - Divorce, G&WC in Mediation

My sister is living with her 2 kids who are studying in Bangalore from last 2 years. She was married to a High Court Lawyer, and was living in Dharwad. After her husband locked her out of the house, she shifted to Bangalore, and after 2 years, filed a Divorce Case in Bangalore, while at the same time her husband filed a G&WC case in Dharwad. 
While the High Court in Bangalore has moved the 3 cases (Divorce & G&WC by sister in Bangalore, and G&WC by her husband in Dharwad) to Mediation.
Now with his influence in Dharwad, he has moved the Dharwad court to pass orders. Although, Dharwad court was informed that the case is in Mediation, the Dharwad Court Judge has stated that since, we have not filed an objection, he will pass orders on 7th on Dec.

We want to know how we can proceed with this. How can the lower court pass orders while the High court has moved the 3 cases to mediation?
Asked 6 years ago in Family Law
Religion: Hindu

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13 Answers

File A case before higher court seeking to transfer all case in Bangalore stating judge is biased and aalso that the husband is influential person please move application as soon as possible...

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

1) if judge passes order on 7th appeal against said order beforeHC

2) when HC has placed case for mediation lower court cannot proceed with said case and pass orders

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

If the cases have been referred to mediation, he cannot pass any orders until the time the mediation proceedings conclude.

If he passes any orders during the pendency of the mediation, challenge it in the high court and get the same quashed.

You'll easily get the desired relief.

Vibhanshu Srivastava
Advocate, Lucknow
9588 Answers
303 Consultations

5.0 on 5.0

Dharwad court should not pass orders when HC has has moved case to mediation

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

Ask your lawyer to fIle a memo stating that it is pending before high court any order passed will be violating the orders of high court...and produce copy of orders to the lower court...

Swarnarka Chowdhury
Advocate, Mysore
1879 Answers
5 Consultations

5.0 on 5.0

Hi

When the High Court has referred all 3 cases to Mediation, the lower court cannot pass any orders till such time the outcome of mediation report is submitted to High court.

The order of High court(referring to mediation) is technically a stay on proceedings at Dharwad and Bangalore court(s) as the High Court has referred the parties to Mediation prior to it passing orders on the Transfer petition.

And as such the Order of the Dharwad court is improper and is liable to be set aside as in general G&WC orders cannot be passed ex-parte and more so when the High court has referred the parties to Mediation.

So, you need to file an appeal in the High court under section 47 of Guardian and Wards Act against the Order of Dharwad court with a prayer to set aside the order of Dharwad court.

The High court will definitely Set aside the order of Dharwad Court and at the same time also expedite the mediation and transfer petition proceedings.

Hope this information is useful.

Rajgopalan Sripathi
Advocate, Hyderabad
2173 Answers
394 Consultations

5.0 on 5.0

If you have not obtained stay of from the High Court at Bangalore then the Dharwad court is not obliged to wait for orders from the High Court. Fact of the matter is you must have filed a memo before the court at Dharwad informing the court that parties in the case before it have approached the High Court at Bangalore and the court there has referred the cases filed by both parties to go to mediation and that the mediation process is on going and therefore to keep the cases before it in abeyance till the out come from mediation.

Even after doing this if the Dharwad court proceeds to pass orders, you may have to move a similar memo before the High court seeking stay of further proceedings before the Dharwad court.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Dear Client,

IF

We want to know how we can proceed with this. How can the lower court pass orders while the High court has moved the 3 cases to mediation? -- bring the fact before court, if u will not appear , it will be default on ur part.

Lower court cannot pass order, except this that matter cannot be proceeded due to high court reference for mediation, still it pass some order contrary to high court order, calls for contempt both against judge and ur her husband as it is also his liability to bring forth the above fact before lower court.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Take not of the fact that the Dharwad court will not pass any order, since the HC has referred the matter to mediation.

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

And if by any chance any order is passed then challenge the same before the HC and you will get the relief.

Do not worry.

Regards

Anilesh Tewari
Advocate, New Delhi
18077 Answers
377 Consultations

5.0 on 5.0

Hi

As per your description High Court should be honored by the lower courts but the proceedings in the lower court will run like normal untill the intimation of mediation is not given in the lower court . If the lower court passes any order on 7/12 then appeal in High Court mentioning the mediation matter.

Thank You

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

We want to know how we can proceed with this. How can the lower court pass orders while the High court has moved the 3 cases to mediation?

If there is no restriction or stay from the high court, there is no legal impediment to pass any such order by the lower court with regard to the case before it.

The lower court may decide the case before it if there is no stay by the higher court to operate the proceedings further.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

While we have already attended one mediation in Bangalore (which was not fruitful), the Dharwad court continued to give dates, and as of now, is ready to pass orders, as we have not filed objection in Dharwad, since, case is in mediation.

Question is, again, How can Dharwad court pass orders, while High court has moved the same case to mediation?

Nothing prevented your sister to appear before the Dharwad court to file her objection in the pending case.

Mere mediation pending will not stop the lower court at Dharwad to stop the proceedings, the respondent has to appear before it and raise objections to the proceedings and request to stop the proceedings till the mediation ordered by high court, without taking any steps, she cannot claim any relief.

you may ask her to follow the legal procedures in this regard as per provisions of law.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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