@ Author,
1. Application of mind will be applied to his raised technical objection for which I cannot tell if it may be allowed or otherwise as full facts are specially known to you and not correctly mentioned such as when dismissal order passed (dd/mm/yyyy), when certified copies applied (dd/mm/yyyy), when certified copies received (dd/mm/yyyy), when delay condonation matter filed (even IA) (dd/mm/yyyy) etc. etc.
2. In my opinion if matter is admitted and Service Notice issued then trial Court has accepted your right to file without going into delay condonation matter (IA) as that is to be argued by opposite party when he files his appearance and he has just done that by first raising preliminary objections. Unless that is removed the trial may not proceed further that is your IA to set aside will not be considered until then.
3. As far as when you will get divorce question is concerned, I feel court relief bequest only a vigilant litigant. The history of your litigation is marred with delays on your side for whatever reasons which I do not want to observe here now but first get removed his preliminary objections and then resolve to diligently peruse the proceedings to get timely divorce is my current advice.
4. As far as his desire or will to visit child or seek visitation etc. are concerned it is his rights which he can exercise anytime and based on facts read with welfare of minor of parties, Court then will sit on to decide if visitation to be granted or not. You cannot observe based on his past conduct that he should not be given visitation or complain about it in forum as no useful purpose it solves in your own benefit currently, but, this is exactly your mentored pitch which you then may peruse before the Court but as and when he makes one such claim and not now is my observation.
5. So far as maintenance for child is concerned, no doubt it is non-custodial natural parent duty to either voluntary offer without raising a demand or if Court direct then meet the same when a demand via custodial parent (that is you) is raised and BTW, it is also your duty to raise such demands on behalf of the minor to seek maintenance, ir-respective if you were/are earning an income which I did not see in your long brief other than your minor complain that he has not seen nor paid single penny till date. See, custodial parent no matter earning or idle have moral obligation towards welfare of non-custodial / custodial minor as a minor cannot speak for h/er rights and being you custodial guardian (i.e. natural mother) even if you were working you should have raised such demands (maintenance for parties minor) and all Court would have then decided was based on earning income capacity of both parents and set an co-extensive amount (equally distributed – burdened) to both parents to meet parties child maintenance. That is law and you are just making a false (may be ignorant) cry of it is my view which is you have in past never raised via Court such maintenance demands as it is not even mentioned in your brief that you have raised any such demands via Court.
6. His 2011 RCR decree has become defunct now and he has no useful protection case in hand out of such old Decree for a simple reason that RCR Decree has died un-natural death barred under Limitation Laws of the land, hence except to play the court – court in your divorce case he has nothing more to do enjoy himself with and he is doing exactly that. You cannot even now be allowed to file S. 13 (1A) (ii) HMA by withdrawing what all you are currently doing as your first divorce case was filed on 'mental cruelties' ground by you which till date you are trying to salvage by IA’s and or by Condonation delay application amongst others and meantime he has some 4 years ago already received ex part RCR decree in his favour which has remained un-executed till date which normally has to be executed in 1 year time as per Limitation Act. Moreover to seek divorce under S. 13 (1A) (ii) HMA by either party the limitation bar is 1 year and not 12 years as some people here may say pointing to S. 23 (1) (a) HMA. I am not touching question of 'civil wrongs' which may be raised by some people here as it is not at all material here for simple material facts; you first filed divorce under mental cruelties ground then it got dismissed and in between within next one month he files RCR and then you flew to Singapore means not attending to his RCR and meanwhile your divorce got dismissed and nor even pressing your divorce dismissal to salvage and then you filed set aside of his RCR and also attempted of reinstating of your dismissed divorce with some condonation delay application that also after 5 years and neither joined him in his RCR decree which all means you are continuing seeking relief of divorce on mental cruelties ground whereas your husband is winner of RCR decree which means he wants to live with you and all these are not your “civil wrongs” then what they are?. It is funny that now you come and say I want divorce under S. 13 (1A) (ii) HMA how on earth even Apex Court can grant you such divorce though provisions exists for both party to get divorce under this Clause, but this brief is having unusual material facts of all your ‘continuous civil wrongs’ continuing is my view. I am more confirmed about Limitation Bar that either party has, to seek divorce on non compliance of RCR decree in favour of one party as granted under provisions of S. 13 (1A) (ii) HMA.
7. Flip most of above paras, if you want divorce then pro-actively plead to concerned Court to precede parties case as per Law without adjournments and or in-ordinate delays. But, the case is currently struck due to his raising preliminary objections, so consult with an local advocate found via reference and after due diligence appoint his services to counter the preliminary objections thus raised by your husband on limitation so that the case actually goes for trial and if Court finds grounds appealing to grant divorce to you then she will proceed in accordance with Law to exactly do that, but all these are time consuming. Think of Mutual Consent Divorce by shedding your vulnerability and offering an open hand to your husband, who knows he may melt and grant you one parting gift – forget and forgive and move forward! In such kind of briefs multiple angles approach are tried.
8. Suggested to calmly read the whole reply without becoming hyper-active as almost all above paras covers all your apprehensions – anxieties – court procedures – rights of parties – rights of natural father – maintenance rights of minor and then act in accordance with Law diligently following your own case then only you will get relief otherwise more dismissals, IA’s and set asides and condonation delay applications amongst other you will keep filing without actually making main plaint move an inch further !.
9. Hence, in India it is aptly said, Family law litigation is full time affair of mind and not heart and yet still one party leaves the court dejected which is effects of adversarial Laws of the Common Law followed Countries such as India. So till such time enjoy court procedures as that is what is short-medium goal left to do?
10. If it helps then ATB.
ATB = All the best.
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