2 respondents - if 1 does not appear - ex-parte ??

Shantanu Wavhal (Querist) 03 January 2012 This query is : Resolved
Petition u/s 11 of HMA, 1955
(for declaration of marriage as nullity)

Petitioner = present husband.
there are 2 respondents = wife + her 1st husband

after summons is served, if 1 of the respondents (1st husband) do not appear & the other (wife) appers, will the court declare the suite ex-parte ??

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M/s. Y-not legal services (Expert) 03 January 2012
yes..

if you served the summon properly after that also the 2nd respondent(1st husband)did not appear before the court mean he will be set exparte. but the r-1 ready to face the trial mean case to be proceed further. the r-1 (wife) is contesting respondent.

Devajyoti Barman (Expert) 03 January 2012
Yes but only against the absent party , not against the party who is present.
Moreover the addition of that person in the suit was not needed .

Deepak Nair (Expert) 03 January 2012
Yes. the case will be proceeded ex-parte against the 1st husband and in normal course against the wife.
The case will be contested and will be decided on its merit.

Shantanu Wavhal (Querist) 03 January 2012
@ Devajyoti Barman,

as per,

BOMBAY HIGH COURT HINDU MARRIAGE AND DIVORCE RULES, 1955,

rule 5 (c) :
5. Necessary parties.—
(c) In every petition under Section 11 of the Act on the ground that the condition in Section 5(1) is contravened, the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

in my OP, i have not made the 1st husband a co-respondent.

but now i am filing amendment application, making him co-respondent.

its mandatory to make him a co-respondent as per the rule.

initially, i was not knowing the aforesaid rule.

prabhakar singh (Expert) 03 January 2012
Yes! Rule applies and you are going in right direction by adding him party.

Shantanu Wavhal (Querist) 03 January 2012
most probably, first husband will not appear in court (i talked to him over phone).

even if he appears, he will admit that he has not LEGALLY divorced wife.

he wants to keep away from litigation, as he has also remarried.

1) if he does not appear at all,
will this make my (present husband's = petitioner's) side stronger / weaker ??

girish shringi (Expert) 03 January 2012
It will be in the benefit.

Raj Kumar Makkad (Expert) 04 January 2012
I think maximum has already been suggested and some more knowledge may confuse you which way to go so I make full stop.

prabhakar singh (Expert) 04 January 2012
1) if he does not appear at all,
that may make your case stronger.

Shantanu Wavhal (Querist) 04 January 2012
Today was my first date at court.

1. Amendment allowed in no time, without hesitation.

2. Order passed immediately.

3. Corrections done on OP with red ink & Corrected petition also submitted on the spot.

4. Order to issue summons also passed at the same time.

I am humbled & obliged by the decency of the Judge.

I dont know how to thank you all the experts at LCI !!