• Should exparte clause be added in a divorce filling for mutual settlement

Is exparte clause essential while filing a divorce case via mutual consent under HMA 13B. 

What implications are there if not added ???

If Added, who does this help, The boy's side or the girls side.

"That in case either party does not appear in court for final statement after the expiry of statement period of six months or the date given by the matrimonial court, then another party has the right to take appropriate action against the absent party and the Hon’ble court  shall have right to pass the decree of Divorce by ex-parte order against the absent party."
Asked 2 years ago in Family Law
Religion: Hindu

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19 Answers

Hello,

Such clause though can be made a part of 13B petition but can not be given effect to by the court.

Such clause will make a statutory provision redundant and therefore is not legally enforceable.

And therefore, the clause can just be added to create some pressure on both the parties.

Regards

Anilesh Tewari
Advocate, New Delhi
17791 Answers
296 Consultations

5.0 on 5.0

There is no ex-parte divorce in mutual consent divorce both the parties need to appear before court and sign a joint petition.

if any of party doesnot give consent at the first motion or in second motion the divorce proceeding fails you cannot get a exparte mutual consent divorce.

Sir, no action can be taken against party who doesn't come or give consent for mutual divorce the proceeding itself fails and you have to contest divorce then under section 13 HMA.

Shubham Jhajharia
Advocate, Ahmedabad
25207 Answers
105 Consultations

5.0 on 5.0

1. Whatever clause you include along with the ' es parte ' clause if either of the spouses remain absent the divorce wouldn't be possible.

2. So no clause can dispense with personal presence of the party.

3. If you wish to get ex parte divorce decree in absence of the other party you can file contested suit for divorce.

Devajyoti Barman
Advocate, Kolkata
20791 Answers
296 Consultations

5.0 on 5.0

Exparte clause is not necessary Since both parties will mutually sign divorce petition as such chances of other party not appearing Is less. Even if added it will not help any party since mutual consent divorce essential ingredients is it must be given without coercion or force. Such clause will not bind court to give favourable judgment in favour of any party and cannot be given effect by court and is also not legally enforceable.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Hello sir , in mutual divorce petition the court cannot pass a ex-parte order , if a party evades on the 2nd and final motion ..The court will presume that the mutual consent has been distorted and will dismiss the petition... For further doubts and assistance you can visit at my office in , Gurgaon district court ..Thank you

Hemant Chaudhary
Advocate, Gurgaon
4564 Answers
39 Consultations

4.9 on 5.0

The cooling period of six months is now being waived off by the court on the application of both the parties .. The mutual divorce can be attained within a month

Hemant Chaudhary
Advocate, Gurgaon
4564 Answers
39 Consultations

4.9 on 5.0

Dear Client,

Under mutual consent divorce if any party at the last moment turned hostile or fail to present, court left with no option but to dismiss the petition.

No, ex parte order passes u/s 13B of HMA.

Neither such cause has any legal sanctity and force.

Yogendra Singh Rajawat
Advocate, Jaipur
20151 Answers
28 Consultations

4.5 on 5.0

The ex -parte is the decision of the court in case other party is not appearing after due summon to decide the court in favour of the other party.

when a mutual consented divorce petition is filed it is filed along with the deed of consent from both the parties in the court for speedy disposal of the petition by the court in any case if the other party is not appearing for the proceeding the court have authority to decide the cases as ex-parte

Vimlesh Prasad Mishra
Advocate, Lucknow
6633 Answers
23 Consultations

4.9 on 5.0

It is not necessary to add exparte clause

2) in the event spouse does not appear court would dismiss the divorce petition

Ajay Sethi
Advocate, Mumbai
76984 Answers
4621 Consultations

5.0 on 5.0

No, an ex-parte clause is not essential while filing a 13B mutual divorce petition even it is not an enforceable clause as per law. There will be no implications if this clause is not added. You just simply filed 13b petition stating your respected claims, visitation rights if there is any issue involved, For more information kindly contact me.

Prateek Aggarwal
Advocate, GURGAON
7 Answers

4.0 on 5.0

Such a clause is unconstitutional and against the rules of Natural Justice. Such clauses cannot be incorporated.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Mutual divorce means both the boy and the girl mutually agree for divorce because they don't want to live together and they are living separately for one or more that one year.

Usually, when a mutual consent divorce is filed, there is a 6 months time given by the Court. If within that time no one objects or withheld the case then accordingly the Court can pass a decree of divorce.

Moumita Mitra
Advocate, Kolkata
366 Answers
1 Consultation

4.0 on 5.0

There is no need for such clause as Court will take its course and pass the decree accordingly. Your mentioning doesn't make any difference in your petition.

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

This clause has no means, it has been clearly mentioned in the act that both parties must be present at the time of both motions, if either party is absent the suit can not be decreed.

Akash Gupta
Advocate, Gurgaon
66 Answers
2 Consultations

4.8 on 5.0

What do you mean by exparte clause in the divorce petition even if it si under mutual consent ?

Dont create any imaginary term and keep worrying about non-existent things.

The mutual consent divorce is a joint decision and if either do not appear before the court on the second motion to confirm the decision, the court will treat that as withdrawal of the consent by the other party and it will dismiss the petition.

It is not a contested divorce that in the absence of the other p[arty the court may decide to pass exparte decree.

There is no provision in law for such an event when the petition is filed for divorce on the grounds of mutual consent.

Eventually, on non-appearance of any party to this mutual consent divorce, the court may calle the the party absent and as per law, it will dismiss the petition.

The aggrieved party may file a contested divorce on the grounds of cruelty and may cite this also as an additional ground for cruelty.

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

1. This clause, if inserted in the MCD petition jointly filed by the husband and wife, will be of no use since no e-parte divorce decree on the ground of mutual consent will be passed by the Court if both the parties fail or refuse to appear on the day of the 2nd motion after the cooling period i.e. after 6 months.

2. The said clause need not be kept in the MCD petition at all.

Krishna Kishore Ganguly
Advocate, Kolkata
24414 Answers
680 Consultations

5.0 on 5.0

Hello,

An ex parte order is a procedural provison which cannot be included in the petition . The court will pass the prder ex patte if any one of the party is absent in other cases but not in cases u/s 13B of the HMA.

Hope this helps.

Regards.

Swarupananda Neogi
Advocate, Kolkata
2251 Answers
4 Consultations

4.7 on 5.0

Yes, it can be done, but to save the interest of justice court generally don’t do that as they need to inquire the reason of absence after showing notices to the other parties.

But yes if still they don’t turn up then they are out of the battle.

But, again there are certain judgements where the mutual consent seems to have been gone if either of the party do not turn up and case is disposed off.

Sanjay Baniwal
Advocate, South Delhi
5333 Answers
13 Consultations

5.0 on 5.0

if the petitioner didnt appear then petition can be dissmissed in diffault. if the respondent doesnt appear the the petition can be dissposed off as an ex-parte.

Satsheel Sheokand
Advocate, Gurgaon
20 Answers
1 Consultation

4.1 on 5.0

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