• Ex parte in divorce with child custody

I'm a 26 year old woman from Karnal, with a 4 year old daughter. My husband was cruel from the first day of marriage and after tolerating the abuse for 5 years, I left his house and went back to my parents. In a few months I moved to Australia where I'm doing ok professionally.

My husband regularly demanded money from my parents, which they gave him. I'm not interested in filing for a dowry case though. He beat me for any random reason. He beat my son randomly, with belt. I just want him out of my life.

He filed a divorce case. I was never served summons because I was abroad. 

"Chief of the petitioner" is happening soon. I'd like to know if the case can be decided exparte, and if child custody can also be granted exparte. Should I just let the case go ahead without involving myself, since I want the divorce anyway?

I'd prefer filing a divorce case in Australia itself rather than making numerous trips to India for the divorce case. 

Please help..
Asked 1 year ago in Family Law from United States
Religion: Hindu
1) you should file your appearance and deny allegations made by by your husband 

2) if you don't contest your husband will get experts decree of divorce 

3) application for divorce filed by your husband can be converted into divorce by mutual consent 

4) consent terms can be filed wherein issue relatin g to child custody . Return of streedhan and maintenance of child etc can be amicably settled 
Ajay Sethi
Advocate, Mumbai
23371 Answers
1224 Consultations
5.0 on 5.0
1. Are you still a citizen of India? Who currently has the custody of the child? Has your husband filed a case for child custody?

2. Child custody has no correlation with divorce as the claim for child custody is to be decided independently of the outcome of divorce proceedings.

3. If your husband is granted divorce then you need not file for divorce again in Australia.

4. The issue of child custody, if you and your child are citizens of India, can be dealt with only by an Indian court. No Australian court can go into the issue of claim of child custody.

5. No trips are required to be made to India by you as your lawyer alone has to appear in the court.
Ashish Davessar
Advocate, Jaipur
18207 Answers
449 Consultations
5.0 on 5.0
Hi, it is better you contest the case on merits if some things go adverse than you will  be suffer.

2. If you want give by consent for divorce and settled the matter.

3. Because, you again want to file a divorce in Australia so it is my advice to settle the matter here only.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
If your status is an Indian citizen, then you bound to obey Indian laws .May you can get a divorce decree from Australia easily but it is not valid in India. 

If a person filed a case for divorce then the court will consider and allowed only on the prior of the petition as divorce. If the petition is for custody of child then the court will only consider that prior and decreed after taking evidence.
 If you are busy in your own schedule and do not attend the court in India, it will definitely adversely affect you and you may be declared as exparty in that petition. If the summons is not served properly, then your husbands advocate takes other alternative steps for issuing summons via paper publication.  So my better suggestion is to appear the court in India. If you are already exparty then file a petition to set aside the exparty order.  

If you need a divorce from your husband then file a joint application with mutual consent because your husband also wants the same. 
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. There is no problem in ex parte except that it may impair your chances of success in child custody case which according to you has been filed by him.In a court room battle one plus one is not necessarily two.

2. Since your husband has filed for child custody you should contest the case if you wish to retain the exclusive custody of your child. In the event of your failure to file for contest the court would proceed to grant the custody to your husband, as a consequence thereof the child will be uprooted from you and handed over to him. The fact that you are in Australia will offer you no immunity from the Indian legal process.

Ashish Davessar
Advocate, Jaipur
18207 Answers
449 Consultations
5.0 on 5.0
1) if husband has filed case for child custody and you dont contest court can pass orders exparte order in his favour . 

2) your husband wont drag the case as if the divorce case goes on for 5 years he wont be able to remarry 

3) the allegations in petition have to be denied by you . you must claim maintenance for the child . you are allowing your husband to go scott free and evade his responsibilities as father 

4) once divorce decree is passed it can executed by taking out execution proceedings 
Ajay Sethi
Advocate, Mumbai
23371 Answers
1224 Consultations
5.0 on 5.0
Hello,
1) If you have so far made no so appearance either in person it through a counsel you authorised to go do
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
If the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte decree. In the case of Hochest Company vs V S Chemical Company, SC explained that an ex parte decree is such decree in which defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning.

The law is made for citizens and the entire peoples are bound to obey the law and all are equal in the eye of law. Judiciary has mechanism to implement its order.  If your husband getting a exparty decree after proving his case before court and the same time you are not challenge the same it definitely affect you. He has opportunity to choose alternative method for implementing the court order with help of Indian Consulate. You have responsibility to appear before the court. 
If you are not contest the case properly then you will defeat and adversely affected your future claims.
Note :1
Where an ex parte decree of divorce is passed in favour of the husband, and the husband contacted the second marriage after expiry of four months, an application for setting aside the ex parte decree was not maintainable.
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1. You let the divorce case continue without you leading to ex-parte grant of decree of divorce,

2. has he filed any child custody case? If yes, then contest it through your lawyer,

3. You shall have to execute Vakalatnama in favour of your lawyer duly getting the same attested  y tye concerned fficer of indian consulate.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
What's the problem if ex parte decree happens?
Opinion: If there is any allegations against you then it seems to be true.

 In a way its good because I do want a divorce and I'll be able to get a divorce without appearing in court. Does it adversely affect me or my child custody in any way?
Opinion: yes, it may be affect adversely  on child custody, but if the child is residing with you and his study is also start in Australia then your side is very much stronger.

Can a judge make a judgement about child custody in ex parte? How can they enforce it?
Opinion: If he filed an application before family court u/s 26 of Hindu Marriage Act-1955 in divorce case then the court may pass an order.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
14154 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23371 Answers
1224 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18207 Answers
449 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2773 Answers
41 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0