• Ex Parte Decree of Divorce

My marriage was constituted as per hindu customs in May 2013 with a person working in Indian Army. Due to many dispute, physical and mental torture on me by my husband and their family during one year of marriage for many reasons such as I couldnt become pregnent till then, demand of more dowry, money, land etc, abuses to my parents etc, I returned to my Parents place in April 2014 when situation become too worst and my life become hell day to day.

My husband and their family forcibly tried to take me back from my parents place. My parents were ready to send me but before that they wanted to resolve these disputes. But my husband and in-laws were not in a mood to calm down and resolve issues, so I didnt went back to matrimonial place.

After few months I received a court notice for divorce from Chandan Nagar Court West Bengal. I got shock to see this because I was waiting that everything will be reslolved. Now I also took advise from one of the lawyer in Barrackpore Court West bengal. He advised me to file case in Bareackpore court- 498A, 406, 323, DV and Maintenance cases filed by the lawyer in 2014 December. I recovered only few thing in 406.. Cases are still not in Trail.

Side by side, I also applied for Maintenance from ARMY Department as I am not wrking and I have no source of income, I am completely dependant on my parents now.

I asked my Lawyer many times about Divorce case in Chandan Nagar Court filed by my husband. My lawyer siad ''dont worry I will attend the case, you dont need to go to court''. I  kept on paying the fees to attend the case.

Now, I came to know from the ARMY Department that Ex-Parte Divorce Decree was granted to my husband on March 2015. When I asked my Lawyer he said no problem, this is not an issue.

I cross checked with other lawyers, they said, my lawyer cheated me and now I need to appeal in Chandan Nagar court against this Ex-Parte Divorce Decree..

Neither I get Maintenance untill now nor my husband and their family faced any problem. Please advise your opinion, what should I do now? Is the objection on Ex-Parte will be accepted by Court? What is the process? What should I do?
Asked 1 year ago in Family Law from Barrackpur, West Bengal
Religion: Hindu
1) file complaint against your advocate before the bar council for misconduct . if he has taken fees he should attend court in divorce proceedings filed by your husband 

2) on basis of complaint made against your lawyer file appeal against order of exparte decree passed by trial court

3) court will set aside exparte decree and permit you to contest the case before trial court 

4) you will have to file your detailed reply in trial court and can also claim maintenance from your husband 

Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
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The divorce decree has been awarded to your husband in March 2015, this should have been challenged maximum by july 2015, but as your learned lawyer kept you in dark , you should file an appeal in the Distt Court or the High Court was setting aside the divorce degree which has been granted to your husband along with an application for con donation  of delay. Any further delay in the said matter  will lead to losses to you whatever they may be.
Atulay Nehra
Advocate, Noida
423 Answers
15 Consultations
4.7 on 5.0
Hello,
1) The reason for the ex parte order in the divorce petition is due to the non appearance of you and your lawyer in all the proceedings. However you should also have received a notice regarding the ex parte proceedings and it would have been sufficient to attend the court even at that stage.

2) Once the decree of divorce is granted by the court you will need to file a petition to set aside the decree in the appellate court. You can cite the same reasons in your query as reasons for your absence and you can certainly get the decree set aside.

3) Once the decree is set aside the case will revive in the lower court and you can contest it then.

4) Let your advocate bear the cost of the proceedings and get the decree set aside and further contest the case for you as you have already paid the fee to him.Let him know that in the alternative you have the option to approach the Bar Council of the state and complain against his professional misconduct. 
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
1. The ex parte decree has been granted because your lawyer apparently did not appear in the court on the dates fixed for hearing. You should apply for setting aside of the ex parte decree in the Chandan Nagar court against this judgment. Engage another lawyer for your defence as your earlier lawyer did not perform his duty.

2. You are at liberty to file a case for maintenance against him in the court under 125 CrPC. This apart, a case for domestic violence to claim compensation can also be filed against him.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
1. I am not sure why are put into this mess, out of mishandling of your case or your pwn negligence to pursue it properly.
2. Immediately file a case under PWDV Act in Barrackpore court wherein you will get enough maintenance in short period of time.
3. The prefer an appeal in high court against the ex-parte decree. Filing a setting aside petition in the same court will not give you desired result.
4. Feel free to call me if you need any assistance on this issue. Do not posse hope as loss can be compensated if proper action in due time is taken.
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
Your case is very pathetic.  You are suffering from double jeopardy, one is from your husband's side due to matrimonial disputes  and is due to lawyer's betrayal. Actually litigants suffer by falling  prey and victim more due to such unprofessional and unethical lawyers only and not due to the severity of the cases.
Well, now since the court has passed the exparte  divorce, you change your lawyer and proceed with setting aside the exparte divorce decree through another capable and trust worthy lawyer.
In my opinion, other than police case, the other cases also would not have been filed or if filed, your same lawyer would not have  followed it up properly hence it stands stagnated at one end itself, verify the status and change the lawyer for those cases too.
Writing directly to Army authorities seeking maintenance from service soldier can be entertained if the application is from wife, whereas he would have escaped stating that you are no more his wife since your marriage has been dissolved by a decree of divorce therefore not entitled for maintenance.  For this you must write a reply stating that he fraudulently obtained the divorce from court using your absence to his advantage, hence that should not be considered as a ground for refusal, however the setting aside process is going in in the court, hence he may be advised to send monthly maintenance to you.  But remember that Army authorities have no obligation to accede to your request without a court order for salary deduction, hence it is better you obtain an order at the earliest in the maintenance case pending in the court so that you can officially claim it. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1) your other cases of 498A , DV , maintenance won't be affected 

2) you have good case on merits . You have to apply for and obtain copy of divorce decree passed by court . 

3) since it is an appeal you don't need NOC of earlier lawyer . You have to give lawyer vakalatname to appear on your behalf 

4) please verify the facts about your husband remarriage . We can advise you only on the detailed facts being known . If your husband has remarried within period of 90 days of obtaining divorce decree second marriage would be illegal
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
a) No, 498A, maintenance and DV will continue as it is. However, if the process is slow ask your lawyer to file an application for early hearings.

b) The court or the lawyer of your husband would have sent you the notification of the same but might have been sent intentionally on a wrong address.

c)The second marriage after obtaining divorce decree is valid.To get the second marriage into periphery of void marriage you need to first get the divorce decree cancelled.(challenged in high court).

d) Vakalatnama for the new lawyer has to be signed and brought on record . There is no need to get  a NOC from the previous lawyer.
Atulay Nehra
Advocate, Noida
423 Answers
15 Consultations
4.7 on 5.0
1. It should not have a bearing on the other cases.

2. The court does not send the judgment copy to either party. You have to obtain it on your own.

3. His second marriage is valid till such time that the court sets aside the divorce granted in his favour. 

4. You inevitably need to sign a vakalatnama in favour of your new lawyer, albeit the requirement of NOC from previous lawyer can be dispensed with by the court if you can show that you have paid the entire fee of your previous lawyer.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
Thank you for your valuable advises. I wish to know whether this Ex Parte judgment will affect my other 3 cases (498A, Maintenance & DV) pending before Barrackpore Court?
The exparte divorce decision will bind only the divorce case and not any other cases whether pending or disposed. 

I hired another lawyer and he filed today in Chandan Nagar Court for setting aside Exparte decree explaining the reason that I was kept in dark by my lawyer about attendance of hearing dates and I was totally unaware of the decree of divorce. Could you please advise if the Court coulld have sent the judgement copy to me when the decree of divorce granted by court. I was not been informed either by court or any other means.

The exparte decision itself is made due to your absence only, so there is no necessity to inform or communicate to you about the decision.  If your advocate had been ignorant of the case, you are paying it through your nose for this lethargic attitude of his.  The court has no obligation to communicate its decision, it is the duty of the lawyer of the litigant to properly represent and update the progress of the case to his client. You can quote the negligence of your previous counsel for this exparte debacle as a reason for setting it aside.


I dont know whether my husband got married again after decree, if it is so, is his second marriage is valid? What action will be taken against him after filing my objection for the Exparte decree?

Once the appellable period is exhausted or over and if there is no appeal pending or in sight, there is no bar in he marrying another female and there is no legal infirmity in it, the second marriage will be considered as a legally valid marriage.



If I change my lawyer, do I need to get Vakalatnama signed by next lawyer and get NOC from last lawyer? Is this important?
If you are not able to get NOC from previous lawyer, you may express your inability to get the same before the court for the reasons due to which the same has been set exparte, that will be convince the court and shall allow you to proceed through new counsel. 
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
Hello,
1) If he got married it will be considered illegitimate once the ex parte decree is set aside.
No action will be taken against him as such. You will get an opportunity to contest the  case before the court that decreed the divorce,once  again.

2) It is mandatory for you to get the Vakalatnama signed by next lawyer and get NOC from last lawyer. I wonder how the new lawyer you hired managed it without an NOC fromthe previous lawyer or a Vakaklat from you! 
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0

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