You can contest the divorce proceedings
2) contested divorce proceedings take years to be disposed of
3) your lawyer can appear on your behalf but your personal presence would be necessary during trial
Divorce application by respondent while DVC is in process
I am a 73-year-old doctor, and my husband is 75 years old. I filed a Domestic Violence Case (DVC) against my husband in 2016. Later, in 2019, we reached a Memo of Compromise after my husband agreed not to harass me. However, he went back on his promise, so I refiled the DVC in 2021. I have submitted CCTV evidence against my husband, and we are nearing the trial stage. Now that my husband has realized his chances of losing the DVC are higher, he plans to file for divorce. In this context: 1. What are his prospects of getting a divorce? 2. I am moving to Canada to be with my son. If he files for divorce, can a lawyer conduct the case in my absence? Thank you.
Asked 2 years ago in Family Law
Religion: Hindu
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15 Answers
Dear Ma'am,
Ma'am, he may file a Divorce Petition under the H.M.A. 1955, in such a circumstances, you can execute a Power of Attorney in the name of a person whom you trust a lot, that person can conduct the case on behalf of you.
You can go ahead and file a maintenance petition u/s 125 of Cr. P.C. 1973, it is summary in nature and is meant for giving instant relief. In that case also you can execute a Power of Attorney and that person can prosecute the case on behalf of you.
1. Since you had filed the complaint under the provision of DV Act in 2016 and compromised the same , and further refiled in 2021 due to his continued act of violence upon you, then it proves that you are subjected to cruelty from him , and hence there is narrow chances to get the relief from the court
2. Yes, you can engage a lawyer for contesting the divorce case on your behalf
- Further, you can also give POA to any relative to appear and engage a counsel for the same.
- If, none will appear after getting the notice his divorce case , then the court may proceed for passing ex-parte decree of divorce in his favour.
Divorce will be treated entirely on merits of the case separately than DV.
yes your lawyer can conduct the case but for evidence you might have to come
1. If he is filing a divorce cae on the grounds of cruelty then it becomes his duty or the burden lies on him to prove the reasons or grounds of cruelty, if possible with evidences, if he is not able to prove it then he may not succeed in the case.
1. You may have to give power of attorney deed to any representative to represent you before court in the divorce case even though your advocate will be fighting the case on your behalf
1. Divorce case is clearly a counter blast to your DVC case. As such, his prospects would not be good if you decided to counter his divorce case and made a counter claim against him. You can also claim maintenance, etc.
2. You can appoint your special power of attorney to contest at your instruction and also to represent you in the divorce case. You would not be required to appear on every date in the divorce case. A lawyer can also represent you but for filing reply etc the appointed lawyer cannot sign on your behalf as respondent at your place. So SPA would be more appropriate.
Divorce Prospects: The prospects of your husband obtaining a divorce will depend on various factors, including the specific grounds for divorce recognized in your jurisdiction and the evidence presented during the divorce proceedings. Generally, if your husband can establish valid grounds for divorce under the applicable laws, such as irretrievable breakdown of the marriage, cruelty, or other legally recognized grounds, he may have a reasonable chance of obtaining a divorce. However, the final decision will depend on the court's assessment of the evidence and the specific facts of your case. It's important to consult with a lawyer who can provide guidance based on the laws and practices in your jurisdiction.
Conducting the Case in Absence: If you are moving to Canada and your husband files for divorce, it may be possible for your lawyer to represent you in your absence, depending on the laws and procedures of your jurisdiction. However, it's important to note that family law procedures can vary from one jurisdiction to another, and there may be specific requirements or limitations on representing a party in their absence. Your lawyer will be able to guide you on the specific rules and requirements in your jurisdiction and advise you on the best course of action to ensure your interests are protected.
Don`t bother, if you contest, divorce proceeding will take years and may dismiss.
Yes.
These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation.
Chances of divorce at this stage of life is very bleak. However, Court may grant if your husband is able to prove the grounds alleged in the divorce petition. Hon'ble Supreme Court has allowed video conferencing in various matrimonial matters, though not as a matter of recourse. It depends also on the availability of such facility.
You may contact my secretary to connect with for clarification. Detailed discussion is required in such cases.
Gopal Verma
Advocate on Record & Amicus Curiae
Supreme Court of India
My husband has agreed for a compromise on mutual grounds. Content: The petitioner submits that she does not require any financial compensation. The petitioner intends to move to Canada to be with her son. However, if the petitioner visits Chennai under any circumstances, she requests access to the premises where she currently resides. The petitioner intends to use and possess the clinic portion on the ground floor. She submits that she runs a small saree business along with her daughter-in-law in the clinic room. The petitioner kindly requests the court to direct the respondent not to disrupt the business setup in the clinic room and to allow access to the employees for its operation. If the petitioner hires any staff for her business, the staff members should be granted access to the rear side toilet. Additionally, the petitioner's daughter, Aarti R, will act as the caretaker of the business in the absence of the petitioner and her daughter-in-law. The petitioner submits that her Super Visa to Canada (which grants her permission to stay in Canada for up to 7 years) has been successfully processed. She intends to leave for Canada as soon as the Domestic Violence Case comes to a conclusion. The petitioner humbly requests the court to direct the respondent not to disturb her belongings in the house and the setup of the clinic room. The petitioner plans to sell her car, bike, washing machine, refrigerator, and television before departing for Canada. The respondent can continue to rent out the ground floor and enjoy the rental benefits. Regarding the movable assets, the Will executed by the respondent will be handed over to the petitioner. 1. Is the content ok? Does this content negatively impact me? 2. I will print this on A4 paper, get it signed by me, my counsel, my husband, and his counsel, and present it on the next hearing date. Is this the correct procedure? 3. Will the case be over on the same day or will there be another hearing?
Asked 2 years ago
1. It appears that you have expressed whatever you had in your mind.
You can get it edited through your advocate to appear legally versioned.
2. Okay.
3. You have to appear for second motion again.
Once consent terms are filed in court case woukd be disposed on same date
2) the consent terms have to be signed by parties and their advocates
3) will can be revoked any time
4) undertaking of respondent should be recorded that he would not disturb her belongings and grant access to Petitioner employees in the ground floor premises
1. No. Neither custody of child is decided nor the right of petitioner wife in respect of clinic portion is described. Court cannot direct the respondent regarding non disturbing the assets of petitioner. If divorce is there then what is the use of WILL for assets of petitioner and its requirement to handover the same to petitioner. The clauses are confusing and donot end litigation, not describe the rights and titles of petitioner. What would be status of petitioner on death of redpondent and vice versa? Withdrawal of pending cases be mentioned beside other litugation. Get the clauses corrected to end future complications.
2. Get a deed of settlement and counsels should sign as witnesses.
3. It may take 2-3 dates.
1. Yes, the contents are in your favour
2. Yes, however it should be accompanied with at least Rs.100/- stamp papers and notarized.
3. It can be finalized same day , if both the parties are agreed on that MOU.
- However , if you are going for mutual divorce , then it may take another dates .
The answer is no for above queries it will not affect you
Content and its impact: The content you've provided outlines the petitioner's requests and intentions regarding the division of assets and access to premises. It appears to be a proposal for a compromise, and whether it negatively impacts you would depend on your specific circumstances and desired outcomes. It's crucial to carefully review the terms and implications of the proposed agreement and consider seeking legal advice to ensure it aligns with your interests and protects your rights.
Procedure for presenting the agreement: The procedure for presenting the agreement may vary depending on the court rules and practices in your jurisdiction. It's generally advisable to work with your lawyer to draft the agreement accurately, including all necessary terms and signatures. They can guide you on the specific procedure for submitting the agreement to the court, which may involve filing it with the appropriate court clerk, serving copies to the other party, and potentially presenting it during the next hearing.
Duration of the case: The duration of the case and whether there will be another hearing can depend on various factors, such as the complexity of the case, the court's schedule, and any potential disputes or disagreements that may arise. It's difficult to predict with certainty whether the case will conclude on the same day or require additional hearings. Your lawyer, who has a better understanding of the specific circumstances and the court's procedures, will be able to provide more accurate guidance on the expected timeline of your case.