I got ex parte judgement in divorce case on 30 nov 2022. my wife from whom i got the divorce has now filed an application to set aside the divorce judgement on 25 Apr 2023. we have a son who is 16 years old who is staying with her and whom she doesn't want me to meet even though i have the orders from court to allow me to meet my son. she makes excuses to ensure that i do not meet him. i have been giving maintenance as per the court orders to her and fulfilling all demands of my son also. my queries are:- 1. can now the judgement be set aside. 2. i have given a plot to her of approx 5400sq ft to her which has good value in the market so can she still demand any maintenance from me???, as i feel she can sell the plot and take care of herself and i dont want to give her any more money. 3. can she take my son anywhere i.e out of city or country without my knowledge?? 4. does she have any right to on any of my present property after the divorce?? 5. she is claiming that till the set- aside petition of ex - parte divorce is finalised she cannot be told to move out of my house?? pls clarify.
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Delay in filing application has to be explained
2) court would in interest of justice set aside exparte divorce
3) court would award her maintenance
4) seek stay offers restraining wife from taking son out of country without your consent
5) file eviction suit against ex wife
1. Yes, if grounds do exist.
2. Liability to pay maintenance depends upon facts and circumstances. However, you cannot dictate. Approach court only.
3. No. Take required necessary steps to ensure compliance of order, and regular meeting and sharing of holidays etc.
4. No but she can claim maintenance.
5. No, incorrect. Go strategically.
1. If the application has been filed within limitation, it will be taken up by the court on its merits.
2. You may plead this point and convince the court based on evidence.
3. If the court has granted you visitation rights, you may file a contempt petition if she violates the court order.
4. No. The court order will be binding.
5. Yes.
Dear Sir,
Kindly file an Execution Petition to get your wife to comply with the orders of the family court. If your wife is violating the order then that amounts to Contempt of Court and you can bring this to the notice of the Judge regarding this issue. The Judge may pass a strict order directing your wife to comply with the orders, otherwise face contempt of court charge. If your wife has filed a miscellaneous appeal to set aside the Judgement, then the proceedings will go on. You file an IA in the same matter seeking temporary custody of the child permitting visitation rights. For further queries Contact me- +[deleted].
On the basis of the limited information made available by you the answers are as under:
(1) Yes, the ex-parte judgement can be set aside if she proves the exceptional circumstances which prevented her from attending the hearings or that she had not received the information/summonses.
(2) The issue of maintenance shall be decided by the Court in case the judgement is set aside and it is heard again.
(3) In case the ex-pate judgement is not set aside and it is in force then she will have to follow the directions given by the Court in the judgement and if there are directions that she cannot take your son out of city or country without your knowledge then she cannot take him away. If the judgement is set aside then she will have to follow the directions of the court given during the pendency of the case or on conclusion of the case.
(4) No, after the divorce she cannot have any claim on your property. However, she can approach the court to attach your property to realize the alimony or amount of maintenance, if not given to her as per the court orders.
(5) As the time limit of appeal has already passed and the judgement has become effective, she can be asked to move out of your house. But you need to take care while doing so. It should be done either amicably or with the intervention of the court otherwise she might make some other complaint of physical assault etc against you. If the ex-parte judgement is aside or during the hearing any orders are issued to maintain status quo, i.e. the situation prior to ex-parte judgement, then she will continue to enjoy all rights as your wife till the case is finally decided.
1. She has to file a petition to condone delay in filing the set aside petition under section 5 of limitation act.
After this petition is allowed, she has to argue in the set aside petition.
In both the petitions you have to file your objections and strongly argue against the petitions she filed.
Please note that even if the exparte judgement is set aside, you can conduct the case properly and get a contested decree of divorce in your favour.
2. If she's got income to sustain her expenses then she will be eligible for monthly maintenance from you.
3. If you anticipate that she may do so, you may even file a petition seeking to restrain her from fleeing outside the country with the child without your consent to take the child abroad.
4. She doesn't have any rights in your property either before or after divorce.
5. You can ask her to get out and can decide about coming in if the divorce case is dismissed, until then, you can keep her out of the house, even by force, if necessary.
yes the judgment can be set aside if the court satisfy there are some valid reasons for her non -appearance.
if she proves that she is incapable of maintaining herself and the child, then she can claim maintenance.
yes she can take your son with anywhere as she is natural guardian. you have to file petition to restrain such acts of your wife.
no after the divorce your wife doesn't have any rights to claim either your property or your ancestral property in any manners.
you can move out of her house by filing petition before civil court. divorce proceedings is separate proceedings and vacating her is separate.
1. Yes, the ex-parte judgement can be set aside on the reasonable grounds of delay
2. No, she cannot demand maintenance , if she is having property in her name and which is sufficient for her maintenance.
3. She cannot take the son out of country without getting your consent.
4. She cannot claim share in the property during your life time.
5. Without setting aside the ex-parte decree , she having no right to stay in the house.
She needs to prove that she was not served otherwise it can’t be set aside casually. Court will see limitation
pls ref my queries certain more information and your comments are requested:- 1. i have gifted the house to my daughter in law in 2008 and same is now in the revenue records. however, in 2013 due to the pressure from my wife from whom i have got ex- parte divorce made me write a WILL wherein i was made to mention that the my house should be given to my wife. is there any relevance of that WILL now.?? 2. can she claim that house based on the will?? 3. can my daughter in law file an eviction suit??
once gift deed is executed duly stamped and registered daughter in law is absolute owner of house
2) will has no value as you are no longer owner of house
3) daughter in law can file eviction suit
No. As you gifted already before execution of will then the same will not be now included in will. Only if your gift deed is proved void in court then it will be not applicable
The will becomes effective only after the death of its maker. You can modify and change the will anytime. She cannot make any claim on the basis of your will during your lifetime. In the same manner, your daughter in law also cannot file an eviction suit because as of today she has no enforceable title in her favour. However, you can exercise your rights on the property, if you so desire.
1. As per law, a registered gift deed cannot cancelled without court order even by the executor.
- Further, during your life time this Will having no value in the eye of law, and even after your demise the gift deed cannot be cancelled by your wife.
2. No.
3. Yes,
1. A Will can be cancelled by testator anytime, even if it was made by a registered document.
You can cancel the Will.
2. You can cancel the Will immediately.
Be informed that the Will shall come into force only after your lifetime
3. Yes, she can.
1. Since in 2008 you had already gift property to daughter in law hence in 2013 when you made WILL, you were not the owner of the property so your WILL which was already under pressure is infractous, null and void. As per law a person can bequeath his owned property only. Further the period of limitation to invoke gift is three years only so gift made in 2008 could also not be invoked in 2013. Once gift is made by you and your daughter in law has accepted the gift under some rituals and ceremonies then your daughter in law has become absolute owner and after expiry of three years such gift cannot be invoked. As such there is no relevance of your WILL in 2013.
2. No. WILL is null and void from its inception.
3. Yes, she has every right.
1. As you had gifted your house to your daughter-in-law in 2008 itself, your Will made out in 2013 bequeathing the same property to your wife is invalid legally.
2. No. See reply to Q 1.
3. Yes, she may.