Expartee decreeof divorce


whether exparte decree of divorce can be set aside.Signatures of wife on summons were obtained by saying that her signatures are required for visa verification.She didn't go through the contents. She came to know after six months .Any supreme court judgements on setting aside exparte decree of divoce.Further what if husband enters in to a second marriage before the wife came to know about decree of divorce

 
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Senior Partner

@ Author,

Your brief reminds us of not so similar but nearly similar Appeal that came to Hon'ble SC this year which is re. below and as far as my advise is concerned I see two angles in your brief;

 

 

1. Seek assistance of your existing Adv. and ask him to move set aside Application before concerned Court citing FRAUD and mor eof less quoting re. Parimal vs Veena @ Bharti  [Hon’ble SC on 08 Feb 2011] -


Full text  of re.-


http://indiankanoon.org/doc/602824/

 


Where it was held:
The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce, moved an application for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance u/s. 125 of the CrPC - Said application was accompanied by an application u/s. 5 of 1963 Act, for condonation of delay - The trial Court examined the issues involved in the application at length and came to the conclusion that respondent miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same - HC allowed appeal filed against said order - Hence, the instant appeal - Whether HC rightly allowed appeal filed by respondent against the order of the tribunal? - Held, an ex-parte decree against a respondent has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing - In the instant case, the HC did not deal with the issue of service of summons or as to whether there was 'sufficient cause' for the respondent not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court - Hence, the HC had not dealt with these issues in correct perspective - Moreover, it was nobody's case that respondent made any attempt to establish that there had been a fraud or collusion between the appellant and the postman - Impugned order of the HC was set aside - Appeal allowed. “



There are other FRAUD related Judgment of Hon’ble SC which your Adv. might have access to otherwise whistle here someone will pop it for your Adv. (read as to service your request brief before us)

The above is first angle to provide you to-the-point help as many readers command me to do so...............



But mint fresh from Indian countryside there is a usual dadi maas saying;

Allow me to quote her….....


“It is common that a bakari gives ledi after giving milk in the same pot”



So here I go which is hard to change now that it is my court practice and procedure bread and butter so…………..


2. The second angle is why NOW? It has been 6 months since you signed the PAPER (whatever it was told to be as!) I mean you were aware that some activity relating to divorce going on in some Court so it was also your duty to check about the STATUS of those activity with your then Adv. Don't litigants do that and would wait for 6 months to check STATUS of some divorce case before some Court is a inference that needs overriding either by you or by your adv. upon challenging there once you state  "GROUNDS" to set aside a ex party decree obtained under FRAUD.

 

 


2.2
For your last sentence............If he is found to be guilty of committing FRAUD then he is in big trouble if proper Criminal Law is set to motion and in meanwhile if he got married then your SHARE is protected in terms of seeking ALIMONY (S. 25 HMA or even S. 27 HMA) as concerned Court will protect his second wife who is now legally married to him (if he married now is the infinite possibility chance no person would leave to destiny by choice kar key aab)


BTW., (read as reasoning) the so-called second angle i.e. para 2 was necessary inclusion to put in as my reply even though you may not like reading it but that is what prudent people challenge before Bench hence I think it was necessary inclusion in line of our standard advise here…………rest is your choice how best you can rebut this advise accordingly in Court of Appeal not to me as I am not your case Judge..............

 
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Partner

Ms Goyal, 

There can be two distinct situations. in the event the decree is obtained in a foregin court or one obtained  in a Indian court.

 1. Under section 13 of the code of civil procedure a decree obtained in a foregin court is inclonclusive and does not bind the parties therein if the decree is tainted with fraud, or in ability to participate in the proceedings. A fresh proceedings can be instituted in India. It is also possible for you to institute proceedings for bigamy and there is no valid termination of a marriage.

2. In the even that the dcree is granted by  a court in India, the provisions or Order 9  of the Code of Civil Procedure provides power to a court   to setaside the decree. The proceedings would have to   be instituted  before the court that granted the decree of divorce with the 30 days of the  knowledge of  passing of decree or file a Appeal to the high court challanging the decree. In either of the situations you could  and ask for a injunction restraining the husband from contracting  a second marriage. 

3. In either of the cases please bear in mind the purpose would be to negiotiate a reasonable settelment  as even if successful you would not be getting back your husband.

Nandgopal.B

Partner , Law and Options, Bangalore

 
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The sign is taken by cheating. Even Sommons was not served properly. So,  to set aside Decree exparte, by O. 9 R. 13..of civil procedure code is a remeby!

 
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None

So can non attending party, who receives notices and does not attend court proceedings, claim  that post man took his/her signature by fraud and get ex partee order set aside always?

 

 
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Partner

sure if first prove you are illitarate and unable to understand the contents of the notice to the satisfaction of the court.

 
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In continuation to above message the decree of divorce was passed in januarary and husband and wife stayed and cohabited togather in the same house.however husband didn't disclose the fact to wife. He even attended socail function with his ex-wife. Photogaph has been attached in the court file.He sent her to newzealand to meet her brother there he sent the divorce orders disclosing this fact to wife .She immediately returned back to India and entered the house with help of police. It is pertinent to mention that during divorce petition he along with his wife shifted to rented house,so that he can leave the house any time leaving the wife alone.An application under domestic violence act was moved for providing residence .An interim order was passed not to dispossess her on 23.09.11. However before receivingsummons and orders he shifted from that place after taking all the household articles.A complaint was lodged at the police station and his new address  was located with the help of police officials. Npow the case will come up on  19/10/11..However new address has to be given to fresh service.Meanwhile shall she continue to stay in the rented house as interim order has been passed or shall we move another application under domestic protection violence act to providing accomadation in the house where husband has shifted on 30.09.11

More over divorce was obtained on grounds of adultery and the adulteror was not impleaded as party

 
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Senior Partner

@ Author

A very sad case !

1. We are not sure if you have source of living to sustain yourself in "erstwhile rented shared household" ?

2. We are not sure  what does the "erstwhile rented shared household" rent agreement is all about? The landlord may evict you the moment s/he hears of DV interim relief as no lanlord likes momentary attachment of property in midst of two spousal court cases ! Let us face the truth.

But you shall get justice.

Hence, not only maint. for sustaining self shall be asked but "rent amount" in advance for the complete length of renth agreement too shall also be deposited and based on para 2 even "alternate residence" shall also be placed before ld. Court as alternate relief. We mean you shall not be left on the streets just bze other spouse played fraud and everyone knows how long Court cases runs. Press for this as EXPRESS interim relief that is for what Bharat Ratna DV Act is all about is in public domain to use.


3. The divorce decree will be set - aside donot worry and heavy penalty shall be asked by your side as it is not a joke such things shall have been played upon you by tricking / cheating and playing fraud including criminal charges of "marital rape" when knowledge of 'decree' (whatever way it was obtained is secondary challenge) was played upon a un-suspecting spouse !


I mean this brief is height of it yet very schoking and a sad case in public domain. We wish you courage and all the very best to bring to book such fraud spouse behind bars as there is no alternate remedy one shall go in for.

 
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