• Ex parte divorce and marriage

I am a teacher at Delhi. I am earning Rs. 40000/- per month. I was not happy with my husband. I filed a complaint with CWC Police Cell in April 2009. In May 2009 I stated to CWC Cell, that I do not want to stay with my husband. My husband tried through his relatives to speak with me and my relatives for re-union. but I refused to stay with him. in 2012 I realized that it is very difficult for me meet the expenses of my daughter for her education. So in Sep 2012 I opted to seek benefits through DV Act at Family Court Delhi. I demanded Rs. 60000/- per month maintenance from my husband. He left the job and said he is not earning. He also filed a divorce petition at his native place in Rajasthan. I was served notice for divorce petition. I appointed an advocate. He filed his VAKALATNAMA at that Family court. He kept on attending on my behalf but some how I could not appear before that family court in Rajasthan. I chose to approach Supreme Court for Transfer of Divorce Petition to Delhi. In the mean time Ex-party divorce decree was granted on 05 July 2013. However on the same day Supreme Court ordered a stay on the further proceedings of Divorce Petition. Some how this order was not communicated to Family court in Rajasthan on 5 July 2013. 

1.  Now the case has been transferred to Family Court in Delhi since June 2014. But my husband says that after the divorce decree of 05 July 2013; he go married with other woman on 10 Jul 2013 and I am no more his wife. Is the marriage legal?? What is the status of my marriage with him?? Kindly advice as to what benefits/reliefs can be granted to me out of this case?

2.  For the second case that I filed under the provisos of DV Act in Sep 2012; he says that this is a time bared case as this case was filed after a period of 3 years and 4 months. We never lived together between May 2009 to till date. My daughter is also adult now. She will be 19 years on 30 July 2014. He also produced CWC Police Final Report where in it is mentioned that Complainant (i.e. me) do not want to stay with er husband. Kindly advice as to what benefits/reliefs can be granted to me out of this case?
Asked 2 years ago in Family Law from New Delhi, Delhi
Religion: Hindu
1) you continue to be his legally wedded wife . since divorce proceedings in family court in Rajasthan had been stayed on 5th July 2013 decree of divorce passed by Family court in Rajasthan on said date is null and void 

2) was your husband party to application made before SC for transfer of divorce petition ? if so he was fully aware of the order passed by SC . subsequent marriage by your husband  is illegal as divorce proceedings had been stayed by SC in family court 

3)Dv is continuing offence . your husband continues to be liable to pay for the daughters maintenance . hence your DV case file in September 2012 would not be time barred .
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
From the facts you mentioned, it looks you deserted the husband and according to the Supreme Court of India, a woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance.

Other facts you mentioned don't matter a lot as the prima facie your demand for maintenance don't stand to the latest opinions of the judges. Though you can still seek maintenance for you daughter.
Deepak Tiwari
Advocate, New Delhi
40 Answers
8 Consultations
4.7 on 5.0
Dear Querist
As you informed that you are not ready to live with him then it will be better for you to not to file any petition against the ex party divorce.  Apart from this fight domestic violence case against him.  
He is right to say that the domestic violence case is time barred as per Inderjit Singh case decided by supreme court. 
Now your daughter is major so she can not claim maintenance from him.
But if you want to fight the divorce case then you can claim alimony from him if he is capable to earn more than you and have some properties and savings Under section 25 of Hindu Marriage Act.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
You won't be entitled for maintainence as you are a working personnel and earning a good income but you can file a maintainence for your daughter, she is entitled to get maintainence till her marriage. Since he is not working you will have to show if he is earning from any assets or belongings or cash deposits etc in his name.since supreme has stayed divorce proceedings you are his legal wife and will continue till the decree of divorce petition.since he has remarried before the decree his marriage is  not legal and you can sue him for adultery and bigamy. Get all proof and submit in the court.
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
HI,
1. legally you are his wife;  as the family court Rajasthan's  ex-parte order is void,since the supreme court order to stay the proceeding  is in the same date.
2. Your DV petition still effective and can get a maintenance for your kid and other reliefs if any asked. Your child is now adult and you can seek the maintenance for the period from which you were separated and he has not . maintained the child . The Dv petition is not time barred as it is an  offence in continuance.
Now the divorce matter is transferred  to your place of residence in Delhi,so you can fight it . if you have not filed written statement in the divorce matter, in the written statement make prayer for and  ask for alimony and residence , educational expenses and future marriage expenses for your daughter as you are the guardian.  Even if the court makes it discretion based on that your daughter is adult, it will consider that an unmarried daughter is the responsibility of the parents .If the W.S has already filed  move another application for alimony and other  monetary relief  in the same court in Delhi where divorce matter now pending.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
Although the Supreme Court Order was not communicated on time it is still binding on all subordinate Courts and hence the order of the Family court in Rajasthan is void and so is his second marriage.
As you still continue to be wife continue to pursue the DV case
Just because he said it is not time barred.
You can get the reliefs of a separate residence order,a one time alimony and or maintenance for your daughter until she is married.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
You have to file an application to set aside exparte decree of divorce notwithstanding that the decree passed by the family court is null and void. Even a void decree is to be set aside. Your complaint under DV Act is maintainable since the divorce did not take place in 2012. Inderjit Singh Grewal case is not applicable in your case since limitation starts only after one year of divorce.  You can refer to Geeta Kapoor v State of Haryana where in Inderjit Grewal case has been discussed. However grant of maintenance depends upon income of spouses. You can definitely claim for maiƱtenance for the child.
File a complaint under secion 494 IPC  against the husband for remarrying. Your husband allegedly remarried on 10 July within the period when  you could have filed appeal against the decree. Which is illegal.  
Youncan also file a suit for declaration of second marriage as void.
H. S. Thukral
Advocate, New Delhi
520 Answers
125 Consultations
5.0 on 5.0
first thing you proceeed under DV act &claim all reliefs. on the other sue your husband for bigamy or declare his marriage as null &void
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
1. Not being happy with one's husband is not an acceptable ground for filing DV case,

2. If it is proved that you have deserted your husband without any valid ground, you will not be entitled to any maintenance. Your daughter may get maintenance till she is married if the Court orders so,

3. Had you made your husband a party to your application for shifting the case to Court before the Supreme Court? 

4. Had your husband communicated the ex-parte divorce decree to you?

5. If you have not made your husband a party to your apllication before the Supreme Court for shifting the bcase to Delhi Court and if your husband had communicated the ex-parte divorce decree of 5.7.2013 to you and you have not filed any appeal challenging the said ex-parte decree before the higher court, then your position is very weak legally,

6. However, your daughter can still claim maintenance from her father till she gets married.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
woman who deserted her husband and the matrimonial home and refused to return despite repeated requests was not entitled to maintenance
Rajeev Bari
Advocate, New Delhi
1506 Answers
92 Consultations
3.5 on 5.0
No you can not get this flat as alimony because you are able to maintain yourself and he is pensioner now. You can not even claim maintenance from him.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
you are eligible for getting 1/3 of his income as maintainence. file a maintainence petition in the family courtyou file a DV case and ask the part of the house as alimony and maintainence
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) since you are still legally wedded wife you have right to stay in matrimonial home . (since exparte decree of divorce has been set aside and case pending in family court in Dwarka) 

2) you are not eligible for any maintenance as you are earning Rs 40,000 per month more than pension he receives . 

3) since both you and your husband  have decent income expenses for maintenance of child have to split eqaully between you and your husband 

4) you cannot get the house as alimony . you are earning decent salary of Rs 40,000 per month . alimony if awarded would be nominal only
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
Hi,
 Do not ask for maintenance for you, as already DV has filed for your daughter , The arrears will be awarded for the years when she was a minor. You can ask for alimony as it is your right at the time of divorce as he had asked for divorce. You can ask for  a  house if he has other properties, it depends on the assets he holds court give orders. it is better that you ask for alimony and  house as you have your daughter , as now you are living in your parental home.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
Hello,
Since you have no residence of your own under the DV case you can ask for residence.However since your husband is disabled and is a pensioner you can not expect to receive a huge amount in alimony.
Again the grant of it depends on other assets he may have.
If the house in question is the only house he has you can not stake claim for it.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
5.0 on 5.0
1. You can not ask for any share of the house during his lifetime,

2. Since you are employed and also have deserted her, you are not entitled to any maintenance,

3. First you shall have to get favourable order for the alimony which is not very likely since you have deserted him and non of the defects/ailments you have mentioned above calls for deserting him legally.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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