Options after ex parte decree
My husband has obtained an ex parte divorce on 17th july 2018 in uttarakhand, the notice for which was sent to my parents' address in Ghaziabad who don't live there anymore. I live in Delhi and hence had no knowledge of the case. I was married on November 2011 and left my marital home in july 2016.
Due to financial constraints and poor legal advise I filed for divorce instead of any other case which is still in service of notice stage but now that the other party has been granted ex parte divorce, my case is pointless. Any suggestion on what options are available to me now are welcome keeping in view the following:
1. I filed divorce on grounds of cruelty while the other party obtained divorce on frivolous grounds like refusal to take care of wifely duties, wanting to live at parents' house with husband etc. Notice sent twice, no newspaper publication.
2 .All my jewellery and belongings are with them. My parents have severed ties with my (Stepmother). Making do with on and off tution classes on Delhi.
3. During my stay there, I had undergone several incidents of physical, mental and financial abuse including two miscarriages.
4. Can I stop ex-husband's remarriage somehow? I've been told set aside appeal for ex-parte is useless since I've filed for divorce too hence the appeal will be rejected.
5. In-laws are resourceful and will go to any extent to avoid monetary compensation while I don't have the resources for a long legal battle.
Please guide me on what can be done at the current stage to bring them to justice and retrieve my belongings even if I don't get any monetary respite.
Asked 2 months ago in Family Law from New Delhi, Delhi
1. You may file a petition for setting aside the ex parte order on the ground that notices were not served upon you and wrong address was mentioned.
2. File a FIR of 406/ 498A.
3. If you file an application for setting aside ex parte order then he will not be able to re marry.
No appeal will not be rejected on this ground that you have filed a divorce petition.
Advocate, New Delhi
You have to initially move an application for setting aside exparte order.
Once it is allowed ,other things can also be worked on.
Under order 9 rule 13 u may file an application for setting aside exparte decree against you wherein notice has not been served on you. However limitatiion for filing such application are 30 days but we can explain before honourable court that notice is unserved on you and bonafidely delay has taken place which is legal under the law. Peculiar to say here that presently your status is a divorcee. You may also take other course of remedy under the law under criminal procedure code and domestic violence act since taking exparte divorce decree fradulently will also be taken as cruelty
1. Appeal can filed challenging the ex-parte divorce to set aside Same further contest the divorce and seek alimony and maintenance further the grounds are false.and frevilous.
2. File a FIR under 406 ipc for stridhan gold your items
3. Case of domestic violence and cruelty can be filed.
4. See since you have filed for divorce still the grounds on the husbnads divorce is granted are false further no alimony maintenance and you have not contested same so in case of natural justice appeal can be allowed
5. You can file an application and seek maintenance under 125 crpc and under the domestic violence act.
file application for setting aside exparte divorce as notice was sent at parents address who dont stay in said address
2) file police complaint under section 406 of IPC against husband , in laws for refusal to return your jewellery
3)with draw your divorce petition
4) you can file appeal against exparte divorce decree if you so desire . it is not useless
5) seek maintenance from husband in divorce case
You should consider filing a complaint with the police against your husband and inlaws the 498 a of the Indian Penal Code.
If the concerned officer in charge refuses to register a first information report about commission of a cognizable offence within his territorial jurisdiction under Sec. 154(3), the informant can approach any senior officer of police or the Superintendent of Police or the Commissioner of the police with a written complaint.
If even after submitting a complaint to Senior Police officials no FIR is lodged then the informant is legally entitled to file a complaint to the Judicial Magistrate/ Metropolitan Magistrate u/s 156(3) read with Section 190 of the criminal procedure thereby requesting the FIR to be registered by the police and commencing investigation into the matter.
You also have an option for filing complaint under the provisions of protection of women from domestic violence act
Advocate, New Delhi
You need to withdraw the divorce petition filed by you.
Followed by this,you need to move an application under ord. 9 rule 13 for setting aside the ex-parte divorce that has been granted to your husband.
Has your husband remarried already? Approch CAW Cell of Police to seek help. They will call your husband and ask partciipate in counselling proceedings.
Advocate, New Delhi
First without delay have to file application for set aside ex parte order. (clause 4 - Poor advise - have to file application for set aside ex parte as the same has been granted on false grounds. If both parties wanted divorce than the right course would have mutual consent divorce with settled terms.
And remedies under domestic violence act and maintenance are not available to wife who left husband for these reasons (refusal to take care of wifely duties, wanting to live at parents' house with husband). So, ex parte set aside is indispensable.
File criminal complain for recovery of your articles/belongings or get the order from court.
1. An ex parte decree can always be challenged and recontested.
2. You can file an application for injunction to claim back all your dowry articles from the family court.
3. You can also file various criminal case under different sec of IPC like 498A, 323 etc for all the physical abuses and miscarraiges. Go and lodge a FIr against him in your nearest PS.
4. You must withdraw your divorce petition, file an appeal to set aside the ex parte order and stop his re-marriage and also file other criminal cases except divorce against him.
5. You may contact me at nine eight triple one two one three one two if you donot have enough financial resources as we give probono services to the needy clients to provide justice.
Adv Vikas khatri
1. Since he has already obtained a decree of divorce you can either restore the exparte divorce case by filing a petition seeking to set aside the decree and judgment or you can with draw the current divorce what you have filed against him.
2. You can lodge a police complaint seeking to retrieve your jewels from him in the police station where they live.
3. You can file a domestic violence case against them besides a complaint for dowry harassment and cruelties.
4. You cannot stop his marriage because he has obtained decree of divorce hence it will not be entertained.
5. You have to somehow manage the funds to fight for your rights.
Thanks to you all for your answers. I truly appreciate any advise that I can get at this point. One thing that still remains unclear to me and the biggest hurdle in current situation:
1. What if I file an appeal for set aside of ex-parte order and the other party objects saying that I've also filed for divorce? Will my appeal be rejected on the grounds that since I've also filed for divorce and divorce has already been granted in husband's case, why do I need to get it set aside?
3. If I register a complaint under 498A immediately after filing an appeal for set aside of ex-parte, will the complaint take a hit in case appeal is rejected?
2. Both the parties filed for a divorce in different states. While in mine notice was sent once and was not received, they got ex- parte divorce in theirs.
2 Their case was filed before mine.
3. I've only till 17th of October for the 90 days period for filing appeal to get over.
Asked 2 months ago
1) your appeal would not be rejected merely because you ha e also filed for divorce . Husband obtained divorce by playing fraud upon court by deliberately giving your wrong address
2) complaint under section 498 A appears to be an after thought
3) you should file appeal at the earliest against exparte divorce
1. No, that won't happen. The purpose of filing the appeal is not only to ensure that the exparte divorce decree gets set aside, but also to ensure that all aspersions made against you and as accepted by the court while granting divorce to him, stand withdrawn.
2. NO, even if your appeal is dismissed, 498a will go on unaffected.
3. File an appeal for setting aside the exparte divorce decree
Advocate, New Delhi
1. As the allegations and the ground on which divorce is granted on merits the divorce granted is wrong therefore the divorce can be set aside. further no notice and the alimony support is not provided.
02. No 498a will not be rejected on ground of appeal as it is a criminal offence.
03. You can file an appeal and contest on merits further disclose before the court about the divorce you filed and pray to set aside the exparte order,
1. There is nothing wrong in you filing a separate divorce case against him for the reasons that you rely upon.
In fact you can file a set aside petition or an appeal agaisnt the exparte decision given to his divorce case during the pendency of your own divorce case, ther is no bar on it.
3. The 498a case is different to that of the divorce case, hence dont mingle that with this.
2. What do you want to say by narrating this, you proceed as per your plan and dont get confused with his case, he can do whatever he wants, you concentrate on your case alone
Your case could not be dismissed on such ground as you can take the defence that the ex Parte divorce has been awarded by way of concealment of material fact and using false and Concocted statements by your husband in court against you.
The complaint made by you under Section 498 a would not have any bearing even if you appeal to set side ex Parte divorce is dismissed. The case under Section 498 a IPC would Run independently irrespective of any other legal proceedings going on between the parties.
Advocate, New Delhi
As i said, Divorce granted on false grounds will effect your future and acceptance of those grounds.
And it is abuse of process, dual proceeding at different place cannot run concurrently, one has to be stayed and have to be in knowledge of court.
1. This is no ground for not setting aside the ex parte decree.
2. You file the case right now, filing appeal and then filing 498A will weaken your case as they may come up with the defense that the cases are being filed just to harass you.
3. yes the appeal has to be filed within 90 days.
Advocate, New Delhi