• Can my spouse take an ex-parte divorce

Hi! I will mention my concern pointwise in 5 points for your quick and easy understanding.

1. My wife was caught in Adultery red handed 5 years ago by me. I caught her red handed in company of a boy in a Guest House. 

2. There were 2 cases filed. One filed by my Father (Permanent Injunction) wherein my wife can't enter his home. (FYI, I stay with my father only). Other case was filed by me by me..a Divorce case in Family court...that's a contested divorce on the grounds of Adultery committed by my wife. 

3. Regarding my father's case, order has been passed that my wife can't enter my father in law's house. Order was passed just 2 weeks ago. Regarding divorce case, it was "Dismissed in Default" about 1 year ago as I was not appearing in court. So as on date, no case exists. Point to be noted that in Permanent Injunction's suite, in the order it's clearly stated that my wife hasn't entered the suite property for 5 years.

4. I fear that my wife can get a divorce through ex-party if she files a case in any court within India. If she sends notice as well, it won't reach to me as I have shifted my residence and she doesn't have any details of my NEW residence. Even in both the 2 cases (as mentioned above in Point 2), only the old address is mentioned. 

5. I have 2 kids and they both stay with me. My wife doesn't want kids and both my kids want to stay with me only. There was a document signed in Mediation by both myself and my wife (when the Permanent Injunction suite was ongoing) to which 'I' have later on disagreed. Major points were pertaining to Custody of child, No alimony asked by her and No maintenance asked by me.

I have 4 questions:

1. Can my wife take an ex-party divorce by filing case in any court in Delhi or India...even if notice / summons are issued to me, it won't reach me as I have shifted to a new residence and she DOES NOT have the new address.

2. Can my wife enter my father's residence? In the order (Reference point 2 above) the old address is mentioned. Will that order be applicable for NEW residence as well? Though she does not know my new address, but if she wants, she can easily find out one.

3. If she acts smart, she can change her residence to any part of India and then can file a Divorce case in the respective state. Is there any way out I can find online (through Court's website) that my wife hasn't filed any divorce case in any Court of Law in entire India? I am sure there must be hundreds of courts spread across entire nation.

4. Can my wife bank, rely and make good use of the Mediation document signed both by her and myself for ex-party divorce?

I stay in New Delhi by the way.
Asked 4 years ago in Family Law
Religion: Hindu

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18 Answers

Notice of any suit should be served upon you.  Unless it is served,  no proceeding will start. 

Irrespective of court order, you father can resist her from entering his house. Further the order shall be applicable on any house of your  father irrespective of its location. 

Your wife can file divorce petition from her present residential location. It is better you file divorce petition before she files. If your petition has already been dismissed for default,  you can apply to the same court for restoration of the suit or can file a new suit. In that if your wife file any suit that will be transferred to the court where earlier petition was presented and both the parties shall be heard together by the court in which the earlier petition was presented. 

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

You can file a restoration application and revive your divorce case.

She can file a divorce case and the court will proceed ex parte if you dont present yourself.

She will not enter the new residence. The injunction is for the old one but still she has no cause to enter. You can lodge an fir if she does.

She can file a divorce petition only where she currently resides. Even if she obtains divorce it is good for you.

No you cannot find out about the divorce petition online as in divorce cases details are not mentioned.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

1. there is a possibility that she can obtain an ex parte decree, you can restore the petition which was dismissed in default

2. if the order pertains to a specific address/house, yes, she can enter but your father can make a police complaint,

3. it is almost impossible to get the details, the answer lies within the question,

4.  

Suneel Moudgil
Advocate, Panipat
2381 Answers
6 Consultations

4.8 on 5.0

1) you can inform your wife about your new address . In such case summons will have to be served to you . Court would not grant exparte decree unless it is satisfied summons are served to you 

 

2) order would not be applicable to new residence 

 

3) wife can file for divorce in city where she is residing 

 

4) wife can rely upon mediation document signed by you 

Ajay Sethi
Advocate, Mumbai
94815 Answers
7557 Consultations

5.0 on 5.0

1. Service of summon is mandatory for passing any order/decree , hence, if court will receive that the summon could not be served upon you , due to changing of address , the court will not pass ex-parte decree as per law. 

2. Since the court has already restrained her from entering your fathers house, hence if she will try to enter into the same, then it will be considered as Contempt of the court , and she can be punished for the disobedience. 

- Yes, if she will file a divorce case, then 2nd address can be used for service of summons upon you legally. 

3. No, not possible without knowing the details of case . 

4. Yes

Mohammed Shahzad
Advocate, Delhi
13271 Answers
198 Consultations

5.0 on 5.0

1. See she can file case only in court where there is proper jurisdiction like place of marriage,, place you both resided together or at place where you are staying. See if summons are not served as the address is changed she has to do paper publication and other alternative methods so that you are served.

02. See if the order is for specific property then in that case she can enter the second property the order is not a blanket order for all the properties.

03. See you have to search court wise there cannot be search for entire India. Also without serving you she cannot get a divorce. 

4. See can use these documents along divorce though you can contest same.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Dear querist, 

answering your queries in a chronological manner. 

1. No, the ex-parte can only be granted when the summons are sent but they came back delivered. since, you are living at a new address the duty is on her to ascertain your new address and then send the summons. hence, no ex parte can be granted. 

2. no, she cant enter. since, the order is to effect that she cant reside at your father premise. that is understandable. hence, No. 

3. she can, but ultimately she will be in a prejudice if she files at the place which is far away from your residence. if that is done for the motive just to harass you , that can be challenged and by the way of transfer petition your case can be transferred to mutually agreed place. 

4. Nothing can be exparte- till the time summons reach you as the delivery of te summon, maybe non presence or no rely will be considered as service. only then ex-parte decree can be passed. since  you are at new address, there can be no acceptance in your name. hence, no ex parte. 

 

You can contact me for consultation. if any, 

regards, 

YUGANSHU SHARMA 

ADVOCATE 

DELHI HIGH COURT

Yuganshu Sharma
Advocate, Delhi
433 Answers
1 Consultation

5.0 on 5.0

1. If the court is satisfied about the service of summons to you and you do not appear before the court then an exparte divorce decree can be granted.

2. If your father has changed the residence and  you are not residing in that new address with your father then she cannot gain entry to it even though she may approach police for a help in this regard.

3. It is a strenuous effort, if you have patience then you can check the website patiently for any clue about it.

4. What is bank doing in your divorce case?

 

T Kalaiselvan
Advocate, Vellore
85011 Answers
2208 Consultations

5.0 on 5.0

1.You can communicate your address to her. If she files the same after the said communication you can set aside the divorce. 

2.She can only enter if the same is her matrimonial house under domestic violence Act being her residence right

3. Yes but once you communicate your address she can't fool it. 

4. Depends on order of court

Prashant Nayak
Advocate, Mumbai
31968 Answers
180 Consultations

4.1 on 5.0

If the court is satisfied with the service of summons to you by taking all the steps what you have mentioned,  then the court may pass an exparte divorce decree to her. You can't expect her to follow you to all your addresses. She can serve summons to the last known address alone. 

 

 

T Kalaiselvan
Advocate, Vellore
85011 Answers
2208 Consultations

5.0 on 5.0

Your neighbor cannot receive the summons on your behalf, yes as alternate service she can publish same in the newspaper.

See if she moves to new place and file divorce there at least court should have jurisdiction over there she cannot file false affidavit and seek divorce. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

I ha e already advised you to inform your wife about your new address . In such a case wife will have to mention your new address in petition and summons have to be sent at your new address 

 

2) if inspite of being informed wife sends summons at old address and obtains exparte orders you can take out application for setting aside exparte decree 

Ajay Sethi
Advocate, Mumbai
94815 Answers
7557 Consultations

5.0 on 5.0

1. Ex parte decree can be obtained if it is proved that you have been served summons. The court may proceed ex parte after newspaper publication of summons.

2. The order passed by the civil court has to be perused to answer whether it protects your father against entry by his daughter-in-law to his new residential address.

3. Case status of subordinate courts is now online. If you know where she resides then you can search on ecourts app.

4. Mediation documents is unenforceable at law.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

if summons are not serve to u court can't give  ex parte divorce, first of all she have to file an application for order 5 rule 10 C.P.C for substitute services of summon and summons should be publish in news paper thereafter if Ur not appear in court then court can grant ex parte divorce.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Yes newspaper publication can be done. Yes it can be restored through newspaper publication

Prashant Nayak
Advocate, Mumbai
31968 Answers
180 Consultations

4.1 on 5.0

She may do this. But i don't think there is any harm in that. She can send you a notice to your old home/neighbours etc. A recall of the order would mean the fine would also be either reduced or waived off by the court if pleaded appropriately.

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

1. Yes she can get Ex-parte divorce if she somehow manage to prove that summons are served or rejected by you. 

2. she cannot enter your father's house even if he has shifted to new house. 

3. There is no way you can get details of all the courts of India Only way you can track the case is to have contact with someone at old address so that they can give you information if some summons come to your house. 

4. Yes she can use the mediation report for divorce case. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Dear Sir,

If one of the Spouses (A) has filed the divorce case and the other spouse (B) did not appear for the arguments and if the ex-parte divorce has been granted, what is the procedure for the spouse B that did not appear in the court to get the ex-parte divorce order ? The case number is available.

reply - You need to apply for certified copy of the decree of divorce along with the judgments. Please tell your lawyer, he may do the needful.

Is that ex-parte divorce order valid for the other spouse also and for remarriage ?
reply - yes its valid for everyone. Both husband and wife. Yes its also valid for re-marriage for both the parties.

If the child custody is with the spouse B and the ex-parte judgement does not state anything about the child custody, can spouse A ask for the child custody 2 years later ?
reply - Custody petition can be filed anytime. It depends on the court, whether courts grants the custody or not keeping in view of the welfare of the children.

Child custody, an application can be filed any time but your stand will be weakened if not filed at the earliest point of time.

Pros and Cons:

A decree of ex-parte divorce can be reopened by the uncontested spouse within 90 days from the date of the decree.  However, if it is not reopened within that specific period, then the decree would become final and the marriage between the parties could be considered as dissolved.  Petitioner spouse can remarry to any other and would be valid in the eye of law.
Marriage between the parties would be dissolved by Decree of matrimonial relief by the way of Mutual consent divorce.

 

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

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