Can it be ex-parte ?


please advise,

I had gone fr a court marriage 6 yrs ago wen i was 18. We have never lived together since then as we thot of pursuing our studies and kept living at our respective parents houses. Parents were unaware of the marrg wen it tuk place. I got to see his true colours during this span n have decided to file for divorce now. He is never going to be ready for a mutual divorce.  But the opponent(husband) is unaware of it n i am not aware f his whereabouts. I feel in such a senario, aftr my filing the divorce, the court wud send him 2-3 notices at his address mentioned in the marrg documents (which is not his current address anymore) n then finally might ask for a publication... n just in case he duznt get either f these  .....are there chances of the case becoming ex parte n will i be able to get a divorce decree on this basis?

And in case it bcms ex parte n i m granted the divorce can he later on ever (when he comes to know of the divorce)...can he then appeal for being heard by the court (as he might say he nevr got the opportunity to give clarifications) ?

And in case he can... then is there any such time limit for him making an appeal after the divorce being granted?

 

One more question... As the marriage was registered at the arya samaj mandir jamuna bazar, Delhi ....which comes under the jurisdiction of the Tis Hazari court, Delhi... while we both are the residents of ghaziabad, U.P....can i file for divorce at the tis hazari court (Delhi) ? Or ghaziabad is the only option i have? Please help.

 
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IT Professional

Hina:

 

I am not a lawyer but I am having similar problem so somewhere on the Internet I came across an article that says you can file a petition for divorce from a place where you have been living for over 30 days. So, I think you can do that at Ghaziabad itself. But Tis Hazari should also be your valid option because your marriage was solemnized in that jurisdition. 

Well, wish you find a life devoid of all this pain ahead!


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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

Dear Querist,

Being a woman you can file the case in court which has jurisdiction over place you reside, and the place where marriage is solemnised definately has jurisdiction. As regards ex-parte once it is passed, ordinarily application to set it aside has to be moved within 30 days of knowledge of ex parte, however this limit is not rigid and there have been cases where the husband has succeeded in getting set aside after years provided off course sufficient cause is shown. 

Feel free to talk !


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Advocate

Dear Hina,

I totally agree with adv. bharat chugh.  Your question of ex-parte divorce requires further clarification and hence, I venture for this:

For getting ex-parte decree, the divorce petition has tobe properly served and the respondent having full knowledge of the case, does not show up in the court to contest the case, then only the court grants ex-parte divorce.  If you mention in your petition  the address of the husband (which is known to you on the basis of the marriage certificate and also you fully aware that he is not presently residing there), the notice come back with a remark that respondent does not live there.  In such conditions, the court will again direct you to file a fresh address.  If the court is satisfied that the respondent is intentionally avoiding the service, then only direct you for paper publication.  So, I suggest you to find out his official and residential address by engaging a detective and then proceed for divorce case.

I am sorry to say this, you also find difficulty to find a ground for divorce.  Even though it appears on the face of it, it is desertion, but in strict interpreation of the term of desertion, your willful separation does not fit into the definition of desertion and cruelty ground is also not available on the basis of the facts you tried to express.

Finally, the divorce case can be filed at the place where marriage was solemnized (means Delhi) or the place where the parties resided together (it does not applicable) or where the respondent is residing at present (you do not know this place) or the place where you reside at the time of filing the petition.  Delhi has got definite jurisdiction to file the case.  You can also file the case, where you are at present residing.

Ex-parte order can be set aside within 30 days of the passing of the order or within 30 days of the having knowledge of the passing of the order, subject to the respondent's ability to satisfy the court why he could not contest the case.  He can also file the appeal within 90 days in the High Court.  The general trend is that in matrimonial matters, if ex-parte divorce is granted  and the party got married to another person, and if the court satisfies that there was no fraud in obtaining ex-parte divorce, the courts will not set aside the ex-parte divorce decree and do not disturb the second marriage.


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Lawyer

If you want proper reply, write in proper English language and not abbreviated or modified (as you have choosen).

 
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Legal Evangelist - TRIPAKSHA

You can file in either of the jurisdiction.

 

Unless service is effected, the divorce won't be granted.

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com
 
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As Mr. Kapoor says, You can file in either jurisdiction. And apart from other arguements i just want to say if you need divorce you will definately get.But do accordingly as your lawyer suggest.Feel free to talk or enquire if you want at sophiya.advocate@yahoo.com
 
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I have the same reply for you also that if you really need any help you can mail your issue at sophiya.advocate@ yahoo.com
 
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