• Receiving summons

I have been married for three years and have been living separately for almost two years now. My wife and I were having several issues which I conveyed to her elders in August 2014. There were three to four meetings between both our families and elders and all kinds of verbal abuses were thrown and rumors were spread. Since a common ground could not be reached her elders wanted to just give it time to see if we can reconcile but neither my wife nor I have been in touch throughout these two years. I travelled to the US in April 2015 for work purposes and am continuing to work here. Elders from my wife's side initiated a discussion about the possibility of a reconciliation to which I have not agreed to and so elders decided that I pay her a one-time alimony and she will apply for ex-parte divorce. All along I was being told that I should come to India and receive the summons in spite of me repeatedly requesting their elders that summons could be served to my address in the US. They do not want to listen and want me to be there in a week's time. If I do not go they said they will take the money which is deposited in one of the elders account and this was suggested by the lawyer (wife's side picked the lawyer) involved. I am also paying the lawyer fee and trying to heed and settle the matter amicably but they are hell bent on me coming to India and receiving the summons personally. I requested the lawyer as well but he said if elders from my wife's side agree he does not have a problem and he would not go the extra step of convincing them. My father wanted to see what faults were written in the petition but the lawyer thinks we are being suspicious and we do not have the petition number either. On the career front, it will affect me because I have lot of things going on at work and traveling to India is problematic in this situation. They won't allow me additional time because they think I am evading them. Until now, my family and I have been trying our best to settle things amicably but they have been very adamant.

Please suggest if my father can receive the summons? I was told that there will be two summons, one through registered post and one from the court. Do I have to take both of them or is receiving one enough? This advocate says receiving either one should be fine. Until now, no cases have been filed by my wife and I do not know if they plan to do it upon my arrival or if they sent or will send any look out notices to the airports. Her elders have threatened to file 498a in the past and continue to spread rumors about me. They want me to travel to India at any cost, please let me know how I can handle this without putting myself into trouble.

Thank you for your time.
Asked 8 months ago in Family Law from United States
Religion: Hindu
1) insist on copy of divorce petition filed by wife . as respondent you are entitled to be served with copy of divorce petition . 

2) it is not necessary for you to come to india for receipt of summons 

3) summons can be sent to your USA address through court 

4)if no case has been filed till date where is the issue of service of summons . 

5) it is only after divorce petition is filed , objections removed that summons are issued by court . 

6) it takes around a month after filing of petition for issue of summons 

7)refuse to come down to india unless you are furnished copy of the divorce petition 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
A Summons is a process issued by a Court, calling upon a person to appear before the court. It is used for the purpose of notifying an individual of his legal obligation to appear before the court as a response to a violation of the law. It is addressed to a defendant in a legal proceeding. Typically, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person, and that a file has been started in the court records. The summons announces a date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time.

When a case is filed before the family court, the court will issue summons by post. If any interlocutory application before the court (attachment is there) then summons served by court person (Ameen) directly to respondent .

The allegations leveled against you in the petition are not known if you are not received the copy of petition and summons. In this sense an exparty divorce is not good . 
To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. Better both of you have to filed a mutual divorce petition. In mutual divorce petition both parties have attend the court only two times. Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested.

Otherwise you have to file a divorce petition under the ground Desertion and cruelty. If she file false case against you then take anticipatory bail and contest the case. Most of the NRI peoples are afraid that when a criminal case against them will affect their travel and job, it is not true. They have options to safe guard their job and travel
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
Blood relations can receive the summons if the summoned person is residing in the same house as that of the blood relation who is to receive the summons. Receiving one summon completes the service. LOC is not issued at the throw of a hat, If 498A is filed and you obtain bail from the court to contest the case on merits there is no question of LOC being issued. Apply for bail as soon as the criminal case is filed.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1. Any person of your family who is adult can receive the summon on behalf of you as per law and the court will consider the same as summon served on you.

2. any summon issued by court can be sufficient if your family members received a summon which came through speed post/registered post or by the process server of the court.

3. it will be better to execute a POA to your family members who can be fight the case on behalf of you before the court, either in divorce proceeding or any other case.

As per my opinion, it will be better to sit tight in your place where you are at Present and no need to come to INDIA, it may be possible that they filed any criminal case and you may got arrested, you passport may deposited and without permission of the court you can not travel to abroad.
Feel free to call 
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1. I find that there is a high risk of being cheated in the arrangement made by your wife,

2. After taking the money, if your wife does not file the divorce suit, then you can d nothing  and your wife will continue to stay as your wife demanding more money,

3. Summons can be sent and received at USA which is not an issue at all and for receiving the Summons you won't have to come to India,

4. The correct procedure is that   both of you should file a joint mutual consent divorce petition mentioning the amount to be paid to her as permanent alimony,

5. You will get the decree of divorce after 6 & 1/2 months from the date of its filing,

6. Both of you shall have to appear before the Court on the final day called the 2nd motion to confirm that both of you still want the divorce.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0
Please suggest if my father can receive the summons? I was told that there will be two summons, one through registered post and one from the court. Do I have to take both of them or is receiving one enough? This advocate says receiving either one should be fine. Until now, no cases have been filed by my wife and I do not know if they plan to do it upon my arrival or if they sent or will send any look out notices to the airports. Her elders have threatened to file 498a in the past and continue to spread rumors about me. They want me to travel to India at any cost, please let me know how I can handle this without putting myself into trouble.

It is not understood that how and why did you agree for exparte divorce and have given away the agreed money in advance to the so called elders even before the divorce petition is being processed.
Well the insistence of the so called elders for you to travel back to India to receive the summons creates some suspicion about their proposed actions.  
In my opinion they may have a hidden agenda to trap you with some other false criminal cases and get you remanded, confiscate your passport and stop you from travelling back to US. 
They can very well request the court to send summons to your US address too, and inform you the proximity of its arrival so that you can sign and receive it.
If you have given the amount by a cheque, you may give stop payment instructions to your banker or can apply for cancellation of the DD if the payment is by DD. You do not have to budge to their pressures. 
T Kalaiselvan
Advocate, Vellore
14057 Answers
127 Consultations
5.0 on 5.0
1) My father asked the lawyer to provide a copy of the petition but he is not willing and thinks we are suspecting him. My wife's side elders know him and we are taking care of his fee. He says the onus is on him and will assure there will be no cases filed if I go to India. This is only a verbal statement and if we ask him more questions he thinks we are suspecting him. All he says is, I just have to receive the summons and leave and he will not even let the other party know. 

The lawyer's attitude is not appreciable.   There is nothing wrong if he is giving a copy of the petition.  being a lawyer he knows it pretty well that the summons can be served at abroad too, it is not understood that why he is also insisting your presence in India just to receive the summons. 
If he is maintaining the same hostile attitude, you may stop paying him the fees and change the lawyer. 






2) During the discussions my father kept saying it is difficult for me to travel because of my job and the summons can be sent to me but they insisted that I come. I had to reluctantly agree because if I am being firm they keep firing abuses and elders from my side just keep forcing us to agree because they think cases will be filed.

You should not be sentimentally disturbed and emotionally affected by such rumours. Be firm on your stand to not to come to India, let they proceed with the case as per procedures or do whatever they like, dont budge to any pressure. 





3) The lawyer decided that he will give the money to the girl's side if I do not receive the summons personally. My job will be in jeopardy if I cannot return back in three to four days and I am definitely not sure about their motive. The lawyer says elders from wife's side want to close this matter as soon as possible and that is why we should not suspect them.

Be careful about this lawyer, he seems to be untrustworthy,i.e., he takes fee from you and acting on their behalf for their benefits.





4) They keep saying we have to stick to our word but we have been consistently trying to get the summons issued to my USA address. The lawyer also said my parents should not listen to hearsay and take the summons on my behalf and if they do there will be more trouble.

This is the right time you discard that lawyer and engage the services of a better and more prudent lawyer who will take care of your interests. 






5) Can I avail the services of another lawyer and have him receive the summons on my behalf and post them to me so that I can send acknowledgement to the judge?

A lawyer cannot receive summons on your behalf, but the summons can be sent to your US address directly by the court if your wife provides the address to the court.







6)  MCD would be ideal but they are not willing to listen to anything I say. Both my wife and I hail from nearby villages and all our elders stick to their own rules. If I call my wife or her parents and request they will make a fuss about it and things get twisted. Please let me know how to proceed.

It is your life and your problem, why do you pay heed to the nonsense of the so called elders, they may be revolving in their own old ideas which is good for nothing.  Just ignore them and try for MCD, if it is not feasible, 
 if they are arrogantly adamant you too can show your arrogance. 






7) Can LOC be issued even without filing of a case? Can an FIR be registered the moment I land in India and an LOC be issued? Please let me know.
A big NO is the answer for this question.






T Kalaiselvan
Advocate, Vellore
14057 Answers
127 Consultations
5.0 on 5.0
1) it is surprising that lawyer is refusing to furnish copy of divorce petition . how can divorce petition be filed unless you approve the drfat in advance 

2) send strong letter to advocate that you shall not  pay his fees unless copy is sent in advance to you by mail for approval . 

3) only then finalise your travel to India 

4) it appears lawyer is hand in glove with your wife relatives . 

5) you can change your lawyer if you so desire . insist on copy of petition be forwarded to you 

6) summons should be served to you at your USA address only 

7) LOC cannot be issued without filing of case . if FIR is filed you would be issued notice for recording your statement 
Ajay Sethi
Advocate, Mumbai
23291 Answers
1220 Consultations
5.0 on 5.0
If you have engaged a lawyer and you are dissatisfied with him then you are free to change him to appoint another lawyer. The summons can be received only by the party in person and not the lawyer.  Unless the criminal complaint is filed and the summons issued by the court are dishonoured there is no question of LOC being issued.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
according to order 21 of the CPC an exparte decree cannot be executed against the other family member of defendants. your family is not personally liable to give one time settlement money .

if suit is decided ex-parte you should file a recall or restoration application whenever you return India. one year is limitation period for filing such application. 
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0
It is your privilege to read the petition and it is the duty of the advocate to serve the copy of the petition.First don't be panic and confused and not take hasty steps.You can engage another advocate if you wish to do so. 

An exparty divorce is not  good. No one can liberty to accept summons if you are in alive.No need to send the acknowledgement  to judge .Think about MCD
Ajay N S
Advocate, Ernakulam
1916 Answers
19 Consultations
5.0 on 5.0
1.This is a peculiar proposal that you shall have to come to India to receive the summons which the other side will not come to know. In case they file the petition, it will come to you. The entire arrangement is strange and appears to be trap only laid against you. Why shall you have to arrive at India to receive the summons when the same can e sent to your USA address? Don't bow down to their highhandness. Just inform them that you won't come whatever be may,

2. The fact is that there is no reason why you shall have to personally come to India to receive the summons. If they force you, refuse to succumb to their pressure in your own interest,

3. The entire arrangement is suspicious. Ask them to file mutual consent divorce forst and do not pay a dime before the second motion. The lawyer has given you false threat. nothing will happen to your job if you do not come to India as per their demand,

4.  No point in listening to what improper statement the lawyer is giving. Yopu are not required to come at all to India to receive the summons,

5. You engage a fresh lawyer by changing the earler one. You are required to be litt;le more bold and tell them that you are not coming at all and they should send it to your USA address,

6. Do not listn to their proposal. It might be a trap against you. Be bold and straight way that you will accept MCD only and not their proposal of ex-parte decree divorce with allegation,

7. Issuing LOC is a wild imagination of your said lawyer to scare you. Please not that LOC is not issued in domestic cases like divorce..
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
231 Consultations
5.0 on 5.0

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