My Sister is living with me for the last 4 years after got separated from her husband. She has suffered so much of tortures from her husband and also he was having an illegal affair. In the initial days my brother-in-law has sent a notice asking her to come back and live with him with so many wrong allegations. We have replied stating that all his statements are wrong. After that we have vacated the house and moved to another house. Now we came to know that he has got divorce since his notices has got returned 3 times from the old house. All my sisters jewels are with him and she is having a girl child of 12 years age. We need some settlement for her future. Please guide us to know if we can cancel his divorce order so that we can get our properties.
Asked in Family Law from Chennai, Tamil Nadu
1) your sister has to move court to set aside exparte divorce decree .
2) seek return of her streedhan , maintenance for herself and daughter
1) It is well settled that a party aggrieved by an ex-parte decree has two concurrent remedies in law. A party aggrieved by an ex-parte decree can file an appeal before the Appellate forum. A party aggrieved by such decree may also make an application for setting aside the ex-parte decree to the Court which passed the decree
2)In an application for setting aside the ex-parte decree, the Court has to address itself to the question as to whether there was sufficient cause for absence of the party against whom the decree is passed and as to whether an applicant is entitled to re-hearing of the main proceeding. In an appeal arising from ex-parte decree, the Appellate Court is required to determine as to whether the trial Court had adequate legal evidence before it on the basis of which an ex-parte decree could have been passed, etc.
3) you can make application for condonation of delay in setting aside exparte decree
4)explain reasons for delay
5) court would condone delay in interests of justice
Filing the maintenance case and domestic violence case against him are the options available to your sister.
Under domestic violence she may claim maintenance, right to residence, child custody and compensation along with all her stridhan.
Exparty divorce can be challenge before the court who passed the decree of divorce within 90 days from the date of knowledge.
Feel free to call
Advocate, New Delhi
For getting her properties she can lodge a criminal complaint against him under section 406 IPC seeking return of her articles.
For maintenance of child and herself, she can file a petition under section 125 cr.p.c.
She can also file a domestic violence case seeking the relief of maintenance, her properties lying with including her jewels.
If she wants to set aside th exparte decree of divorce, she can file a petition to set aside the decree in the same court.
1. Your sister should first apply for setting aside of ex parte divorce decree passed by the court. The court will be slow to allow the application as he has subsequently remarried. Be that as it may, unless the decree is set aside her case for recovery of stridhan against him will be on a very weak footing in the court.
2. It is the legal duty of a father to maintain his children. So your sister can also file a case for maintenance for and on behalf of her minor daughter against her biological father.
file restoration application in the court and set aside the ex-parte order of the court.
you can file a complaint under section 200 crpc agaist them for returning of all jewelries etc. those are your stridhan and you are the absolute owner.