AB 09 March 2017

Ex party divorce: is his appeal infructuous?

My sister got into an arranged marriage with a man in Janury 2013. Within 5 months, she faced problems as the guy used to mentally torture her and she separated. She filed for divorce in 2014 at our hometown (Gorakhpur). The man received the summon and appeared in the court. Then he remained absent on few dates. As the case progressed the cross examination happened for both the parties. He appeared for that too and clearly stated that he is not ready to stay with my sister and put many character related accusations against her. Then to delay the court proceedings he stayed absent on many court dates. 4 times the court proceeded for ex party and he appeared on the next date and each time applied for recall. Every time, it was accepted and the proceedings used to start fresh. Finally in November 2016, the court passed ex parte divorce judgement in my sister favour. He stayed silent for the 88 days and filed an appeal on the last day of the wait period in the same family court that had passed the judgement.

The judgement clearly says that he tried to delay the court proceedings many times and that all reconciliation efforts of the court failed between both tha parties. Will the same family court judge accept the appeal? He is just harassing us mentally through legal way. He is a psychopath and just wants to ruin my siter's life. What to do?

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4 Replies

(Guest)

If the court has accepted its application, then divorce is not yet granted. Provided that orders has not been passed. If orders have been already been passed in favour of your sister, he the husband need to go for appeal in High Court against it and see what happens.

Once it is in HC, HC will look into matter and at best in the interest of saving a marriage wil refer back the case to lower court. And once it is back in lower court, the case will run for another decade.

Best is pay the guy one time lumpsum alimony to let your sister go and take mutual divorce from him. My suggestion is pay 4-5 lakhs and take mutual divorce.

Dr J C Vashista (Advocate) 10 March 2017

@ AB,

1. You are anonymous and such author is not entertained by experts.

2. However, since Helpinghand has advised you, I am of the view to give tips of my opinion.

3. Once a decree (ex-parte or contested) has already been passed, same court can not hear/reopen the case.

4. Whether the boy has filed an application or appeal, be sure? As stated by you the Family Court has passed decree of divorce in favour of your sister, the judicial file has to move to record room and neither application for review (after 88 days) is maintainable in the same court nor appeal (which has to be filed before High Court). She (your sister) has no alternative but to contest the appeal.

5. What is the opinion and advise of the lawyer processing the case on behalf of your sister?

6. I disagree with expert advise of Helping Hand wherein "mutual consent divorce" can not replace the decree (ex-parte) of divorce already stated to have been passed by Family Court. The stage of replacing mutual consent divorce petition was before passing decree (ex-parte). Besides this, in India, alimony (past, present and future) is demanded and awarded in favour of wife and not husband, therefore, the question of one-time payment to husband by wife is other-way-round, which is not the solution of instant query.

7. Discuss the case with a local prudent lawyer for proper appreciation of facts, guidance and proceeding.

AB 10 March 2017

Sir,

It is a simple application citing the health reason of his parents that he has annexed with the order copy. While the case was also on, he used to file a similar excuse in the application for 5-6 dates after appearing once and then used to reappear after these dates and again repeat it for 5-6 dates.