• About ex-parte divorce

Hi,

Myself got married to a girl March 2016, Her parents created a lot of issues by means of money. They directly said to me that I should not spend money on my sister marriage and my mom. Even though my dad expired three years ago. I tried convincing them saying it's my responsibility and all.

I have stopped talking with my in-laws, but through my wife, they created a lot of issues. My wife directly said if I am hearing her parents she is ready to be with me. Meantime one fine day, she fought a lot and throwing mangalyam she wanted to go her parents home. 

I have dropped her, and her parents not ready for talks. I tried to talk with her grandparents and relatives to settle the issues. Her relatives also said her parents won't hear if we say also if you need that girl go and talk with them. 

Somehow, they never ready to talk with anyone. My wife joined hostel nearby my house itself and started forcing me to come and talk with her parents. Then they started talking as divorce saying I humiliated them before her relatives. When I was not ready for divorce her mom spread news to my relatives as I am impotent that's why looking for divorce as. 

Finally, we went for Mutual divorce to court after 3 months of marriage. The judge scolded and said we should not come to court for divorce anytime like. After judge got transferred, we again went to court in 8 months. This time court gave us 6 months of time for reconciliation (First Motion).

Due to work, I have moved to the USA, and even I told them to wait for sometime to close the case. After getting my visa extended when I go court found that lawyer has withdrawn the mutual consent divorce by taking the advance date. Case got disposed of with: Uncontested--DISMISSED AS NOT PRESSED.

Sametime, she filed a new petition for divorce under 13(1). I have not got the notice to appear for about 3 months. When I tried to give petition looking for notice in court. Judge not ready to take my petition and asked me to come on hearing date. I have sent my petitions to judge through Register post with acknowledgment. 

Same time, her lawyer sent a notice to my Office HR dept saying I am not attending court and giving mental torture to the girl.

Later in Jan,2018 hearing court served NOTICE. Postman not ready to handover the notice to my mom. When I discussed with lawyer to appear on behalf of me. He has mentioned as without notice what we can appear.

Finally, asked my lawyer to discuss with her lawyer to know what we can do. After discussion, my lawyer mentioning to me as not to attend the case let it be ex-parte divorce. He asked me to come to india to sign vakkalat and asked me to give petition to postal dept to deliver any letters in my name to my mom.

Is there is any future issues possible if I become ex-parte?
Is there is any way to attend new case referring mutual - divorce and getting a divorce in the new petition?

Thanks in Advance for your valuable suggestions
Asked 4 years ago in Family Law
Religion: Hindu

13 answers received in 1 day.

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19 Answers

Hi Friend,

If the case gone against you as you said ex-parte for that you can reversed it back as per below section

As per Indian Divorce Act, 1869, under section 26

"26. Decree of separation obtained during absence of husband or wife may be reversed

Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at anytime thereafter, present a petition to the court by which the decree was pronounced, praying for a reversal of such decree, on the ground that it was obtained in his or her absence, and that there was reasonable excuse for the alleged desertion, where desertion was the ground of such decree.

The court may, on being satisfied of the truth of the allegations of such petition, reverse the decree accordingly; but such reversal shall not prejudice or affect the rights or remedies which any other person would have had, in case it had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof."

Let it be whatsoever order, as you have valid reason to reverse it back.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Dear Querist

My opinion on your queries are as under:-

Is there is any future issues by my wife/in-laws possible if I become ex-parte.?

Opinion:- Yes, there will be some issues if you became ex-party in the case.

1. the allegations of the girl can be consider as real and proved, supposed she mention as you are impotent then it can be presumed in positive.

2. if she demand any maintenance or alimony then without hearing your side, the court presumed that she is rightly claim and passed an order in her favor.

Can't I get a divorce by appearing in coming court session and referring disposed mutual divorce case?

Opinion:- No, you can not, because for the mutual consent divorce both of you, will have to file a fresh petition before the family court Under section 13B of Hindu Marriage Act-1955

I am in USA, I could not able to go for all hearings in Trichy Court. I tried applying for video conferencing option but got a response as Trichy court doesn't have a facility for that.

Opinion:- You may appear before the court through your counsel or through your power of attorney Holder.

If they are harassing your and sending letters to your HR dept. then you may file a civil suit for injunction against her before the civil court through your power of attorney holder, and your personal presence is not mandatory for the same.

Feel Free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

To sign vakalatnama, ask your lawyer to courier you the same and you sign it accordingly by calling him upon his instructions.

You can go for ex parte divorce but what no one will tell you is, after all this if your wife files a DV after divorce and says she cant maintain herself, she can again extract money from you

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

1) what are the releifs claimed in divorce petition filed by wife

2) you can execute POA in favour of your mother to attend court on your behalf

3) give vakalatnama to lawyer to represent you

4) your virtual presence through skype is sufficient

5) existing petition for divorce can be converted into divorce by mutual consent

6) dont agree for exparte divorce

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

1) if wife is not claiming any monetary reliefs no problem in exparte divorce

2)earlier petition is dismissed so no sense in referring to earlier petition

3) existing petition can be converted into divorce by mutual consent

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Hello,

I understood that you and your wife approached the court in short span of time subsequently you moved to United States and the girl's lawyer not pressed the case. Further after sometimes she filed case on cruelty ground as contested case and you were unable to appear because according to family courts act the respective party should appear before the court and Court will not allow the representative unless power of attorney.

Now the girl got the ex-parte order in this case. Ensure that she is not filling and maintenance case against you.

If you appear court again set aside the ex-parte then it will take more time to settle the matter.

Sivasubramanian B
Advocate, Chennai
47 Answers
3 Consultations

4.8 on 5.0

1. DO NOT LET THE CASE DECIDED EX PARTE. I wonder how and why your advocate ahs advised this.

2.Contested divorce allowed on proof of allegations made therein. So even if you will get divorce if exparte decree is passed the allegations raised by her in the petition will remain proved for ever which is not advisable at all.

3. Send a vakalatnama by post on which basis your advocate can appear in the case on the coming date even without notice. Later take the notice from court/case record itself.

4. In contested divorce decree is passed not on consent but on proof of allegations.You can also place counter claim of divorce in the same suit.

5.In divorce suit your day to day presence is not required a tall. So do not worry about your present location IN USA.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. DO NOT LET THE CASE DECIDED EX PARTE. I wonder how and why your advocate ahs advised this.

2.Contested divorce allowed on proof of allegations made therein. So even if you will get divorce if exparte decree is passed the allegations raised by her in the petition will remain proved for ever which is not advisable at all.

3. Send a vakalatnama by post on which basis your advocate can appear in the case on the coming date even without notice. Later take the notice from court/case record itself.

4. In contested divorce decree is passed not on consent but on proof of allegations.You can also place counter claim of divorce in the same suit.

5.In divorce suit your day to day presence is not required a tall. So do not worry about your present location IN USA.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear queriest,

Be sure it is only divorce petition ur inlaws has filed. If there is another case and exparte decree has been adjudged it would be difficult for you to enter india or go back to usa for work. Divorce decree order you will be the one who are not appearing and thus case would be exparte. Under 13 sub section 1 divorce petition it is stated the divorce can be file on the grounds of cruelty, harrasment etc.. so if you are not appearing in court you are proving the facts alleged by your wife. Ask your lawyer to file written statement in court on behalf of you..

Shivam Sood
Advocate, Ludhiana
111 Answers
1 Consultation

4.2 on 5.0

Sir exparte divorce means without contesting you can get divorce so one way you need not attend court to get divorce. But other disadvantage is if she has claimed permanent alimony you may have to pay full amount if it's exparte. Check the petition first.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Applying for ex-parte by one of the party based on consent between both parties is okay, however, in your case, she has withdrawn divorce by mutual consent, now seriously pursuing divorce. Did you get official response from the court manager that the trichy court doesn't have video conferencing facility?

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. It is strange that you were not advised by your Advocate that you can also notarise your Vakalatnama (sent by your Advocate in India) before the appropriate officer after appending your signature thereupon and sent to him in India based on which he could have appeared during the hearing and have taken the copy of the notice and also plaint of the divorce suit.

2. You should see what has been prayed in the said divorce suit since if there has been mention of any alimony or any allegation for which she can claim or raise issue later on, then you should contest the said divorce suit. If the ground for seeking the decree of divorce is that you are impotent, then if the decree is passed ex-parte, it will be passed on the said ground only accepting you as impotent.

3. If you have no objection in accepting whatever she has mentioned in her divorce suit, then you can go for ex-parte divorce decree.

4. Your disposed of MCD petition has nothing to do in your instant divorce suit filed by your wife.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. If the divorce suit is allowed to be disposed of ex-parte, it will amount that whatever she has alleged against you has been established before the Court for your not contesting the same.

2. You should first get copy of the plaint following the steps detailed in my earlier post. Moreover, how did you lawyer come to know about the said prayer made in the plaint that they are looking for any money? Ask him to email you scanned copy of the said plaint to decide whether you shall allow it to be decided ex-parte or shall contest it.

3. If she want's divorce only, then negotiate with her and jointly file mutual consent divorce petition on agreed terms which will be decided with in 6 & 1/2 months from the date of its filing.

4. As stated in my earlier post, your dismissed MCD petition has nothing to do with the present divorce suit filed by her. You should file it afresh.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

It appears that your lawyer has not guided you properly

On knowing the date of hearing your lawyer can appear before court and represent you

He can file vakalatnama through your authorised representative

Youshould not allow an exparte decision to take place.

You can challenge the same properly in court of law and contest the case on merits

You can change the lawyer whenever you feel not comfortable with your lawyer.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Even before appearing before court don't jump into plenty of conclusions.

You can always fight her case even from remote

You can give a power of attorney deed to any authorised representative in India to represent you during your absence

You can change your lawyer if this lawyer is not cooperating properly.

The exparte decision can have some hidden agenda from her which may emerge and harm your future

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

Hello,

You may anyway through an advocate appear before the court to fight the case (if you know the next date), even though you have not received the notice.

There will be no issue if the divorce is granted ex-parte, you may later challenge the award granted by the court to the wife

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

There is no issue if ex-parte decree is granted.

Disposal of mutual divorce will not be the sole ground of divorce.

You will then have to appear before the court.

Note: Ask your lawyer to procure the copy of the divorce petition so that you may come to know as to what compensation has been claimed by your wife.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

In mutual divorce you can't get divorce through exparte. In contested if one party is not appearing before court other party gets exparte divorce decree. In your case if you don't go she will get exparte divorce if the said petition is of contested divorce.

Prashant Nayak
Advocate, Mumbai
27261 Answers
88 Consultations

4.4 on 5.0

Even without accepting the notice, you can appear before the Trichy Court.

If you do not wish to contest this divorce case filed by your wife, you can appear before the Trichy Court and give your consent for divorce.

In case this is decided ex-parte, then also there is no problem for you, as long as the Court does not grants any alimony to your wife. This holds good as long as you are ready for the divorce and do not wish to contest the divorce case filed by your wife.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

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