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Deleep (Owner)     13 May 2013

Alimony in ex parte divorce

Hi there,

Could you please let me know how will the court decide on Alimony in ex parte divorce.

My wife has filed a Divorce petition recently.She left few of her garments and house hold goods back in the matrimonial house when she left . She had mentioned to compensate those in cash ( 15 lk )in the divorce petition along with domestic violence and many other charges.

I would like to give ex partee since i think the court proceeding will run for a long time to provide the divorce.

I would like to know if the court will pass the order to settle 15lk if i give ex parte or should she approach the court again .

Thanks for your time.

 

Thanks,

Deleep



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 16 Replies

Tajobsindia (Senior Partner )     13 May 2013

1.    Your query has three parts as per my view; divorce – pendentelite maintenance – alimony going ex part route.

2.     If you do not contest her divorce suit it will be decreed ex part. 

3.     If you do not contest her pendentelite maintenance application during the pendency of her divorce suit it will be announced ex part.

4.     If you still do not contest then upon her petition for seeking alimony at the time of passing decree in a divorce suit court may proceed and grant alimony to her ex part.

5.     Now once all and or each of the above decree ex part she gets then she can proceed for its execution and that is when matters gets complicated in reference to context; she now graduates and is called as decree holder(DH) and you are referred to as judgment debtor (JD) and then the DH can seek execution of these money Orders of the ld. Court (i.e. pendentelite maintenance + alimony) by attachment of a JD’s assets i.e. your name all registered properties goes for public auction / sale + if your salary - income source are there then her prayer to ld. Court will be to provide her who is DH the amount of money from its proceeds / attachments of all those income sources of yours. Which is why I mentioned this is when things becomes complicated as your query wordings writing wise is easy read very simply but suppose if you have assets in your name / salary - income source then they gets attached no matter she got divorce decree made as ex part and you thought it was easy route time wise to get divorce by not attending Court hearings as they consume time. Also whatever she claims as pendentelite maintenance +/ alimony mostly ld. Court due to peculiar nature of entered proceedings normally grants in her favour with her least efforts during such advance proceedings.

6.     So decide based on para 4 explanations as what is the larger picture and then act accordingly and not in haste which is said tallying her few cloths + her few furniture = 15 L Vs. contest and allow reasonableness = rationality? J

1 Like

Puneet (Victim)     13 May 2013

Tajobsindia Sir i would like to know what if the husband is only earning Rs 6000 per month and he is living a hand to mouth life without any savings and he sold away his property years before divorce and in this situation if the person does not attend the court cases and if it goes ex parte then what maximum the court can do?

 

 

As there is no property in his name to be attached then will the man be arrested and put in jail for not paying the alimony and attending the court proceedings ?

Tajobsindia (Senior Partner )     13 May 2013

Your first para is already replied previously by me get my reply read by any other person who reads from head if you did not understood it.

For your second para query:-

Remedies as solutions are always there in Family Laws;

1.    In such case you are left with two options;

Option I - Contest case as party in person and plead for negligible pendentelite maintenance followed by based on status pleadings almost negligible alimony. Offcourse you told us only your story what about if she is educated and or employed; be it so negligible or nil will be replaced – interchanged then.

Option II – Metro wife may claim moon, but normally they have to contend with its shadow most often so in such thoughts if you do not contest and proceedings turns into ex part then almost half of your salary – income may get under the hammer of Execution that is least to least will happen and every year she has to file for Execution and same thing will happen. However if you do not even forgo your almost half salary – income then only jail is though that also if proceedings were for S. 125 CrPC (quasi civil-criminal) and not for S. 24 HMA (Civil).


Suggest to apply remedy from head and not from heart and these two replies are enough to get going are my views instead of asking some more talking of; ‘she spent only 3 days in matrimonial home’ / ‘I am the only son’ / ‘my parents are sick’ / ‘my mom is cardiac patient’ / my father is ortho patient’ / ‘I have unmarried sister’ blah blah……. For all these contest suit matters is the word as per once own capacity.  

ANAMIKA VICHARE (LAWYER)     14 May 2013

It is better u dont contest, she will get maint, if u contest she will get more maintnance  Adv Vichare.91-9920764088  Right ow I am in USA 01-317-801-2323..u can give miss call, I will giv u call back..till 31st May

1 Like

ashoksrivastava (scientist)     14 May 2013

@ Deleep Not contesting is like delaying the problem without solving it. Its going to haunt you with larger intensity later. There is no escape from fighting it. better hire a good lawyer and contest it with all evidences. regards ASHOK
1 Like

Deleep (Owner)     14 May 2013

Hello Sir,

Thanks for your reply.

Let me explain the scenario in detail.She is a BE graduate and working in a IT company. She is not looking for alimony.

But she claims 15lk for her garments and household goods she left at home. She is not ready to accept the things back and she needs cash for the same. And moreover there is no proof that those are available at my home.The actual worth would be 1lk but she is claiming 15lk.

I would like to give ex parte and get the divorce. But i want to know will the judgment ask me to pay the 15lk though there is no proof of that?

 

Thanks,

Deleep


(Guest)
Originally posted by : Deleep

Hello Sir,

Thanks for your reply.

Let me explain the scenario in detail.She is a BE graduate and working in a IT company. She is not looking for alimony.

But she claims 15lk for her garments and household goods she left at home. She is not ready to accept the things back and she needs cash for the same. And moreover there is no proof that those are available at my home.The actual worth would be 1lk but she is claiming 15lk.

I would like to give ex parte and get the divorce. But i want to know will the judgment ask me to pay the 15lk though there is no proof of that?

 

Thanks,

Deleep


Many of them have replied correctly above.


Few things I'd like to add.


1.  As she has filed for divorce, and you would not like to contest it, some day the court will pass exparte orders of divorce.  And divorce decree be obtained later on.

2.  Her claims of 15lac articles, there should be valid bills for the same with VAT num, TIN num etc or she should at least have a list prepared which states the list of articles given from her family to you during marriage which should be signed and sealed by both parties to marriage.  Without which she cannot claim she left a diamond studded crown with you and claim it, since you are not appearing, whole of it court will consider until unless you tell that it is just 1 lac worth of articles.  If you do contest the case, then she wont get that 15lac claim that she is making, if you dont attend case, then surely you are in trouble.

3.  If you contest case, she will surely claim alimony later on for which you should file objection and contest it or else it will become a headache for you in the future.

1 Like

Tajobsindia (Senior Partner )     14 May 2013

1.    See one knows what wife wants once he starts (re) dating her in Court corridors so till that time your opening para atleast to me sounds alien J

2.    I already replied what will Court do (thinks) and how Execution happens. Now whether it is 1 L or 15 L and what should be paid to her actually comes out only if one ‘contests’ a case.

3.    If mind is circling around ex part and she is claiming (showing) 15 L and you not appearing then same will be offcourse after her unilateral proof – evidences – submissions – pleadings (colly. read) will be granted to her. After that you can contest showing condonation delay reasons within Limitation Act limitation period etc. which is not the thought lines now bare reading your query before us.

4.    Bottom line guru ji if you donot appear then the straight answer is YES, court will grant whatever lime soda she claims she left behind for Execution of decree which I explained earlier.   it is not called as you are asking us. Execution is finishing the wordings of ex part decree in simple wordings. Now i see she has filed domestic violence complaint case also upon you so if she succeeds in ex part divorce then ever realised what may happen in a ex part domestic violence case suppose there she has asked your friends bungalow as his fault was to come every evenign to watch cricket with you in shared matrimonial home of hers ;-) I understand right now your worry is on divorce but some point of time do worry on ex part domestic violence complaint case too as it does not finish once divorce happens when both roughly filed same time.

5.  If bare reading your query one last time if your hitch is that cases takes long time hence give what she asks taking precautions she does not go back to court - right? Then I see she has filed two cases upon you; Divorce and domestic violence and she has opened her metro mouth quoting a figure of 15 L - right ? Do one simple thing make up your mind how much you feel her metro mouth will drop dead for and appear as party in person in divorce case. The first thing Family Court does as per Feb. 2013 binding directions of Hon'ble SC now-a-days onwards is that she sends party compulsorily to counseling - mediation. There utilize all three dates of mediation and don’t close negotiation on very first date; ask her advocate to be out of mediation citing you appearing in person and ask her with last seen romantic eyes how much she will close all these with! If the figure she quotes is slightly off mark politely tell mediator to postpone session for next date as parties need time to arrange - think it over. On next date again same thing you play and this time she will lower it down and still you feel chance is there to negotiate little more then ask for one last date. On last date of mediation close the figure and turn them into writings as separate statement get them signed by her / you and mediator and sent the file back to court to affix compromise decree. here agree to pay the amount in form of her name DD annexed in file of parties till she withdraws domestic violence complaint and certified copy produced of the same in Family Court so that she can withdraw the DD. The compromise decree blessed via mediation route is not challengeable for lot many years unless she does not get re-married or her mother gets sick or she meets with truck accident or she becomes case for shelter home all these I doubt may happen for next dozen years so re-read this long para apply your adult mind and go for compromise decree with skills of negotiator. MCD I will not suggest as the opening metro mouth is not with good omen but I don’t rule it out and for the same different strategy applies which some other expert may reply as I am all written up here based on what is asked and what could happen within Law.

Here is a PJ she has up her sleeve for you if you are convinced about ex part (collusion route) she is playing mind games citing it takes years to contest and let us take short cut; I apply you donot appear and pops ex part decree – simple – short cut darling listen one time to me J ! Your wife one side piously says darling I donot want alimony then what on earth is 15 L for metro woman divorce she is putting in her petition? Ask her shamelessly forget its worth for a moment J

If that is what is hidden in this query then bargain with her and ask her to amend her claims accordingly and there still pops a ex part divorce decree for both parties mediated satisfaction.

Re-read again this last reply you will get the meaning to your dual state of mind. 

I disagree to @ Anamika’s views. One trip to US and advocates start taking of community properties of spouse that is western influenza bug she caught there looks to me that way and she may file defamation upon me once she returns - no issues there J
Reasoning of opinion difference with her is that; queriest wife is claiming 15 L against the closths and furniture she left behind as compensation that is not maintenance which she is asking but in my opinion it is alimony full and final as hint wife expressing indirectly. If queriest contest the case he can demand bills – rebut the worth of list of items point by point if queriest has company of a good seasoned pleader behind him and it is not that if queriest contests the case the Court will exceed beyond 15 L how come madam advocate educate fellow pleader kindly?  

@ Harsh,

When a advocate tags behind metro wife’s side she may pump more estrogen and mediation more or less never amicably settles whereas if no advocates present for parties in mediation then males chances to pump testosterone  is also less and only worthwhile talk happens then between two spouses which is to either part company with some compromise logics or to contest charges/allegations, just like what they happen to engage themselves in familial conflicts behind closed doors when lights used to went off
J  

During ex part reasonable possible pleadings - evidences produced before Bench is considered as other party is not there to rebut any part thereof. In Law based on pleadings ld. Judges apply application of their mind, the better pleadings are the better reasoned outcome follows.

For your last para thinking I have no comments atleast in this thread as author himself is taking merry go round rides inspite of several clear replies; look at his last reply last para at page 2
J Lets give him benefit of doubts to allow him to meet or not meet his legal wedded wife in Court or not with certain guidelines, at least I would leave a husband with that much dignity at their last mile.

@ Author

You are putting me in a very hard situations, I crossed all that stage after my graduation. However to do complete justice to your evolved query let me tell you that the lawyer you consulted is found of criminal bent of mind nothing adverse in this remark but he should note in a civil matrimonial case there are particular section in bare act just for asked question which is for your consulted lawyer to re—read and it is S. 27 HMA.

BTW honestly if your consulted advocate feels shy to see power of S. 27 HMA then gift wrap to him Hon’ble SC Judgment which clearly tells that under S. 27 HMA asked items in reference to this query can be prayed to be returned by wife and Execution is what all she has to file once ex part decree obtained to return them as it is (means in good condition with huge list since you were ex part) OR cash thereof and Execution Court will grant that summarily believe me. Now donot twist and include her few cloths - furniture into S. 406 IPC is all what I am saying here.

Now for your consulted advocate I present Hon’ble SC judgment;

Ref.: Balakrishna Ramchandra Kadam Vs. Sangeeta Balakrishna Kadam [decided on 4th. September, 1997]

If consulted advocate is not of Apex court standing then gift wrap him ALD HC Judgment on what can be divided under S. 27 HMA and for the same no running to criminal Court under S. 406 IPC needed at all;

Ref.: Hemant Kumar Agrahari Vs. Laxmi Devi, Appeal No. 582 of 1998 [decided on 14 May, 2003]

Neither S. 27 of the Hindu Marriage Act nor S. 14 of the Hindu Succession Act, go to the extent of providing that the claim of a woman on the basis of istridhan is completely abolished, or that a remedy under the criminal law for breach of trust is taken away. All that the two sections, provide is that if the husband refuses to return the istridhan property of his wife, it will be open to the wife to recover the same by a properly constituted suit.  S. 27 of the Hindu Marriage Act merely provides for- an alternate remedy and does not touch or affect in any way the criminal liability of the husband in case it is proved that he has dishonestly misappropriated the istridhan of his wife. It cannot also be spelt out from any textbook or the ilaw of the Hindus that these two Acts take away the istridhan right of a woman-at the most these Acts merely modify the concept of istridhan.

Note:-
My forum messages are not for literal spoon feedings or putting myself in client’s shoes or encourage client’s sentiments / emotional roller coaster joy rides as that are jobs of ld. Judges not mine. Allow me to plead around points of Law which is what my bread and butter allows me to, beyond that it is nobody’s case.  The word ‘suffering’ which you used in page 2 is sari, sindoor, glycerin filled and often one finds them in vocabulary of metro wife not men’s is my constant stand here may be you did not notice it.

{last reply}

1 Like

(Guest)

In short.. she wants money, and you may directly ask her how much she wants or you can take assistance of lawyer or the judge to come to a amicable figure where you part money for your freedom via MCD.

Deleep (Owner)     14 May 2013

Thanks for your views and ideas.

What i understand from my situation is she doesnt want to give a divorce and let me to marry again. And also she doesnt want to come and live with me.

I met her in a busstop to convince her 6 months back. But she filed a case in the local police station that i am troubling her. The Sub Inspector advised me not to meet her again and took a written statement from me as well.

I was willing to compromise and live with her earlier and faced lot of insults. She had sent the divorce notice expecting me to buckle under pressure, leave my self respect and beg her. Now i have decided to move on.

If she really needs a divorce, she could have come for a mutal consent and got her things back. Her intention is to make me buckle to her pressure or to extend the case for years so that i should get stuck with this. 

I dont want this to happen and get the divorce at the earliest and hence looking for exparte. Regarding the alimony, we belong the same community and the village head had already told her family ,not to expect alimony. She has to respect the village commitee's word and would face serious consequence from the village if she neglects them.

Now my only concern is that 15lk cash and to know if there are any bad consequence if i give exparte.

Thanks,

Deleep

Harsh (Manager)     14 May 2013

@taj sir

any specific reason why you recommended not to include one's advocate during the mediation sessions?

During ex-partee, does the court ask for conclusive evidence as to the allegations in the petition (cruelty or the value of articles listed) - or is up to the discretion of the judge? since husband didnt care to attend the court, let me bless the bride with whatever she is demanding.

@i dont want maintenance, but i have left $$$$$$ worth of articles behind.

i think metro wives have learnt some legal aspects - if you are working and educated you are not eligible for maintenance.

plus they obviously dont want to give up their job. so lets go for a lumpsum amount in the name of dowry articles, furniture, cosmetics etc.

Deleep (Owner)     14 May 2013

Tajobsindia,

There is a wide gap between the lawyer's practical approach and a suffering husband's emotional approach. ;)

I do respect all your comments but you will have to come out of the lawyer's mind and think in my perspective too. I am looking for a best and quick solution and hence seeking advice from experts here. I dnt want to contest and see her face again in my lifetime. 

I couldnt accept your comment that 'court will grant whatever lime soda she claims'. One of the lawyer told me that she has to file a separate criminal case to recover what she has left behind and judge cannot give verdict for the things she left behind. Could you please clarify?

 

Thanks,

Deleep

Anjuru Chandra Sekhar (Advocate )     14 May 2013

S. 27 of the Hindu Marriage Act, 1955 says that in any proceeding under this Act, the Court may make such provisions in the decree as it thinks just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. Refusal by husband to return the gift items given to wife at the time of marriage makes the husband liable for prosecution. The section does not bar the right of the aggrieved person to file criminal complaint under S. 406 I.P.C., if property belonging to the complainant is criminally misappropriated by the accused. The section empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property, which may jointly belong to both the husband and wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband.

1 Like

Deleep (Owner)     14 May 2013

Thanks Chanderasekhar.

Does your comment mean that she has to file a separate case to recover the gifted items and the divorce verdict will not include any comments on the gifts?

 

Thanks,

Deleep


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