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How to contest divorce as nri (unable to appear personally)in family court.

This query is : Resolved 
 

(Querist)
15 January 2012

i am a NRI working in middle east .case at ajmer rajasthan. wife filed divorce on cruelty basis at family court ajmer, rajasthan in oct 2010. previously i had filed RCR in nov 2009 at punjab which she transferred to family court ajmer (thru supreme court). three times summons reached my punjab address but my father did not take it. then came newspaper publication in sept. 2011.
my father filed application in family court in oct 2011 saying the summons delivery is wrong and my son is in middle east.
on 17 nov 2011 family court judge dismissed section 9 and gave orders to initiate ex partee proceedings.
as suggested by lawyer i moved to high court and filed 1. quash/set aside petition under article 226 of constitution against this orderof 17 nov 11.also an application to stay the family court proceedings. the high court did not give stay in 3 hearings but summoned the girl but she did not appear (she changed address and summons not delivered).high court also did not dismiss the petition and it is pending.i have also appealed in high court against the dismissed section 9 by family court judge.
on 5 jan 12 family court judge took statements of girl and father about cruelty.he knew that there is petition pending in high court but as there was no stay he proceeded.my lawyer told me judge will pass ex partee order on 12/1/12.
i was late in action as my lawyer was always saying personal appearance is must in a family court.
i sent a letter on 5/1/12 from me (attested by indian embassy oman)to family court judge that i am trying to get leave but my boss denied it to me and i do not want divorce.
also on 10/1/12 my father filed another application in family court - with heading of - as per natural law of justice- that my son should be given chance to contest and he does not want divorce.also he filed an application to allow him as my lawyer and accept the vakalatnama.
the judge on 12/1/12 said - i was to do divorce today. ok u filed these letters i will read the file. he took file to his chamber and gave next date 1/2/12.my father appeared in person on 12/1/12.

now in preparation of 1/2/12 to stop divorce -
1. i want to file a detailed reply to her divorce petition. but my lawyer is saying he can not do now as his vakalatnama is not yet accepted. IS MY LAWYER RIGHT HERE ? neither the vakalatnama is rejected.
2. can my lawyer file a reply to her divorce petition with vakalatnama in A FAMILY COURT, when i am not appearing in person ?

then what to do to stop divorce on 1/2/12 ?i want to block the divorce until she withdraws 498a.


n.k.sarin (Expert)
15 January 2012

There is no direct link of divorce petition with the proceeding of 498a.your lawyer can file a reply to the divorce petition, if you authorize him.I think you try your best to delay the proceeding and your delay tecties comes to the knowledge of the court and it is harmful to you.In these circumstances court has jurisdiction to declare the judgment against you.

Kiran Kumar (Expert)
15 January 2012

you have mixed up your entire case...

Sudhir KumarOnline (Expert)
15 January 2012

Notice against you is already published in newspaper. There might be some more facts as it can be visualized that the case had been going for long as such developments do not happen overnight. You cannot forget the reputation of the NRI grooms in Punjab and invisible bias must be prevailing against you. You are not being heard anywhere. Your conduct on record (as indicated by you) is adverse to your position. You evaded the summons, summons published in court when not received at last known address.

Your question:-

1. i want to file a detailed reply to her divorce petition. but my lawyer is saying he can not do now as his vakalatnama is not yet accepted. IS MY LAWYER RIGHT HERE ? neither the vakalatnama is rejected.

Ans : Neither the plaintiff nor the court is at fault if the defendant is outside India. You have notice of the case and you can file reply through your lawyer. Judge is free and justified to award ex-parte order.


2. can my lawyer file a reply to her divorce petition with vakalatnama in A FAMILY COURT, when i am not appearing in person ?

Ans : I doubt your father is not a defendant he cannot file.

ajay sethiOnline (Expert)
15 January 2012

there are 2 separate proceedings

1)RCR proceedings initiated by you which has been dismissed by family court for which an appeal is pending

2) divorce proceedings intiated by wife

3) since you have failed to appear before the family court the judge has as per your request adjourned case from 12/1/2012 to 1/2/2012

4)you have sufficent time to make personal appearance on 1/2/2012 have your reply filed on said date


Sanjeev Kumar (Querist)
15 January 2012

1. My lawyer filed application to permit his vakalatnama(which i signed)in family court on 12/1/12. he is saying he can not file a reply to the divorce filed by wife as vakalatnama is not yet accepted.he is saying in next hearing only we will come to know vakalatnama is accepted or not.
(1)what are the chances that family court will accept the vakalatnama and appoint him as my lawyer?
i had sent a application to family court judge saying that i want to contest but i am not getting leave from my boss.this is in file before 12/1/12.
(2)what more u suggest to block divorce?

Sanjeev Kumar (Querist)
15 January 2012

sudhir sir, i have given a valid power of attorney to my father. can he not contest divorce in a family court with POA?
Is POA not allowed in a family court of rajasthan?

Rajeev Kumar (Expert)
15 January 2012

You have mixed your case. 498A has nothing to do with divorce.both are seperate cases

Sanjeev Kumar (Querist)
15 January 2012

thanks Advocate Ajay Sethi Sir, i called u just now. as u said i will draft reply sign it attest from embassy here and send to the judge family court directly.

ajay sethiOnline (Expert)
15 January 2012

as adviced to you telephonically you can have your reply duly attested by indian embassy of the country wherein you are working sent by courier to family court .

another set you give to your lawyer to file in case reply sent by courier is not received .

Nadeem QureshiOnline (Expert)
15 January 2012

Dear Sanjeev
as per your query according to family court act an advocate can not appear before the court without the permission of the court.

Sanjeev Kumar (Querist)
15 January 2012

what are the chances that the family court will allow a lawyer /vakalatnama when husband is NRI and unable to appear in person ?

Raj Kumar MakkadOnline (Expert)
15 January 2012

Very well advised by experts.

Devajyoti BarmanOnline (Expert)
15 January 2012

Agree with the common views above.

Sanjeev Kumar (Querist)
15 January 2012

Dear Nadeem sir/experts, i already sent letter to the judge family court that i am unable to get leave to appear in person (with letter from my boss that he refused me leave.).
Now my lawyer requested Family court to accept vakalatnama.
1. what are the chances vakalatnama will be accepted?
2. can my father represent me with power of attorney in family court?
thanks.

Shonee KapoorOnline (Expert)
15 January 2012

Your vakalatnama if duly attested by embassy would be accepted.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

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

am agree with ajay sir's view..

further, your wife filed the divorce case against you only not against your father.,

while being so your father can not contest this case on behalf of you.,

-tom-

Deepak Nair (Expert)
16 January 2012

Rightly advised by the experts above

prabhakar singh (Expert)
16 January 2012

agree with mr.sethi.

Sanjeev Kumar (Querist)
17 January 2012

tom.advocate sir, i have given a power of attorney to my father. is that not valid in a family court ?

Deepak Nair (Expert)
17 January 2012

No. Your fahter cannot depose in the court regarding the matters in whih you and only you have personal knowledge.

The deosition or statemetn which are not on personal knowledge are not considered as evidence in court.

A. A. JOSEOnline (Expert)
21 January 2012

I agree with the experts. While your father can represent you, that cannot substitute your presence. Please be prompt and take serious view to avoid ex-parte decsion against you.

DEFENSE ADVOCATE.-firmaction@g (Expert)
21 January 2012

Well with all the diverse opinion please let us know what exactly happened in the legal fora.



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