Upgrad LLM

divorce case: not attanding the court even in the last time.


In a divorce case where the husband filed for divorce after applyong for restitution of legal rights petition one time, then immiediately filed for divorce.The wife is not attending the court as its in other state. The couple being separated from past 13 yrs having a child girl of 10 yrs. The wife do not want to file for maintanance and also do not want to attand the court even to claim for dowry. She have only checques and DD's given to them, but no bank debit proof as do not have bank pass book of so long back records. Will this create problem to claim dowry? Even then also she doesent want to apply for dowry but still I want to know this also.

She is also not attending the court and will not attend. Now the last presence is in the court. In that case if she will not attend then she will get exparty divorce. In that case what loss can she face? Will the court advice about the child in favour of husband.? Till now she is with her mother and father never took any responsibility. But how the court will do the judgement, kinldy guide me about this.

She do not want any legal rights from there so do not attending. Still what kind of problem she may face? If its must then she may send some one relative from her side to attend the court. Even if she also have no problem to in getting divorce then also is it must to attend the court to say this statement? or as she will get exparty dovorce then she may stay here without attending the court? Kindly guide me.

 
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practicing advocate

She can initiate criminal proceedingfs against the husband by using the blank cheques.  So it is better to inform the bank authroties regarding issuance of blank cheques to wife to avoid the future consequences.  Husaband has to do after the divorce immediately.  After getting the divorce he has to inform the same to his wife, whatever will be informed to the bank.

 
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practicing advocate

He has to inform the bank to make Stop payment of the cheque issued to the wife.

 
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Actually those cheques/DD's were not blank and were provided by brides father to inlaws / husband when she was married as dowry. So to claim the dowry as the bank proof of debit the amounts is not there will it create a problem to claim dowry? Or else th

 

e main problem is that she is willing to leave the dowry to get back. But the main problem is that if she will not attend the court then will there any any negative point said in the divorce paper which she may receive as exparty divorce and will the judgement about the child will go in favour of husband? The child is above 10 yrs old. I wouls like to kow what kind of problems she may face by not attending the court in the last time. She is willing to leave all rights there but still want to confirm about the loss which she may face. Thanks!
 

 
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Advocate

@Rekhaji,

You are in very urgent need of a good and honest advocate to defend your interests.  It appears that you are in govt. service and money does not matter to you, hence, engage a good advocate.  Now, I try to answer your questions:

1.  If I will not attend the court proceedings, whether he will get ex-parte divorce decree?  And if so,is there any loss to me?

Yes.  If you will not attend the court proceedings, he will get ex-parte divorce decree on the basis of the allegations he made in his petition against you.  But, as you are not interested to co-habit again and do not bother about divorce decree, not interested to claim maintenance or permanent alimony ( a lump sum amount, which will be given to the eligible spouse from the other spouse), it does not matter if he gets ex-parte divorce decree on whatever grounds he alleges.  If the grounds he alleges are adultery, extra-marital relationship (more particularlly bigamy, which may affect your Govt. service) unsoundness of mind, cruelty connected with specific s*xual habits, then these will become part of record in the divorce order and may give releflection in future life.  If you want to avoid this, there is a method.  Contact your husband through your advocate and go for mutual consent divorce and get the divorce decree without blaming each other on any ground.  It will protect your interest in respect of your character.  As you are not interested on protecting your interests on monetary matters, I am not touching that topic that how to protect your monetary interests.

2.  Whether ex-parte decree affects the custody of child of 10 years age?

Yes, madam, Yes.  You must be extra careful as far as this particular point is concerned.  This is the particular point, which forced me to write this lengthy reply to you.  If your husband, in his ex-parte divorce proceedings, claim the custody of the child of 10 years age under Section 26 of the Hindu Marriage Act, at the time of granting divorce, as there is no contest from your side, the court will grant him permanent custody of the child.   At least to protect the custody of the child, you talk with your husband for mutual consent divorce and in that petition, if he agrees, you can mention that the custody of the child, still he becomes major, will be with you.  If he does not accept for this proposal, then you should contest the divorce proceedings and there you can give the statement that you will not contest about the divorce decree but contest about the custody of the child.  By the way, even though the child is in your custody, your husband has legal responsibility to pay monthly maintenance to your child's economic needs including educational and medical expenses.

3.  Regarding recovery of dowry?

I suppose that you are holding the photo copies of the cheques and drafts, as originals might have been given to him and at the time of marriage and they might have been encashed.  Even though you are not interested to file any case to recover that amount, you want information, so I am saying that if you file a case for recovery, then you have to file the photo copies and drafts ( they are called secondary evidence) and during trial, call the bank officer to bring the record to prove the debits made in the bank accounts.  If the records are available (as it is 13 years back, I doubt about their keeping the record), they will be produced.  There is likelihood, you can recover the amount. 


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propra

"She have only checques and DD's given to them, but no bank debit proof as do not have bank pass book of so long back records." ............ How old were thoese cheques? .............. even old bank records are obtainable but one needs to obtain at least the source bank and find the trail/trace of those transactions.

Wife has to do all that efforts personally.

 

 

 

 

 

 In that case if she will not attend then she will get exparty divorce...................... LOSS??

If you start counting on those fronts the list may go endless...it may turnout as a multifold loss.

Its like asking what would be extent of loss for giving a blank cheque duely signed!!!

 

ex-party means that party defied the summons to be present and the chance given to her to present her side she hasn't taken.... so court replies whatever other party has stated on oath and that affidavit treated as a means to ascertain the veracity of other party's contentoins and statements e.g. wife used to insult me beat me and used to keep me starving and ....any type of allegation"

 

So if wife wants to challenge it in future in HC... her plea won't stand there.

 

Ex-party means other party which is remaining absent ..... has nothing to say against the allegations even after given many chances to be present and submit their response/admission/denial/version of facts etc. 

 

 

 Will the court advice about the child in favour of husband.? Till now she is with her mother and father never took any responsibility.  Will the court advice about the child in favour of husband.? Till now she is with her mother and father never took any responsibility.

 

 

At least for the sake of child she has to safeguard the interests and rights of the child and this litigation is he right opportunity... if it is to be done then anyways the wife has to go to court  and ndergo the whole process ...then why not now? ... anyways she doesn't have to go through the whole process of process of summons to respondent party ... her husband may have already gone through it and he may play the same tactics if wife files any suit under HAMA etc for the sake of child etc.............

 

Ex-party is the worst thing that can happen ....even worst than truama of prolonged divirce litigation ............

 

One can find many excuses to take more time not to attend the court on each and every date... but avoiding to attendn even once it like suicidal and it only creates problems....

 

Husband may say he has given a huge cache of money to wife for the sake of child and get away in other party's absence..

 

 "She do not want any legal rights from there so do not attending." there can't be any silly answer than this ...frankly. It's not a child's play... Nobody can help such people n that case!!!

 

Can she guarantee that she may not require it in future? ..............

 

Let's say govt makes a law that spouse is entited for 50% share in property... its already working on those lines..... if wife takes the blame and concedes the ex-party lollypop of divorce ... is she able to visualise and comprehend the drawbacks of ex-party divorce

 

Only those party's concede ex-party who haven't got anything to lose are least bothered of the after math...or are sure that they are going lose the case anyways or have btter plans and are reasy to compensate or have bargained out of court and which s evident from the petition also incidently.

 

there is nothing as worst as ex-party....  

 

 


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Dear Sir Chanduji,

Thank you very much for this kind reply in detail. I would like to mention few points.

Actually I am not in gornment serviceand not earning but I am planning for this. In future I may join Gornment  job if got opportunity else whatever possible. My parents take the responsibility.

I am not claiming any thing as never gave any thing and is not willing to give and mainly because they are all cruel and I do not want to get involved in them more. He has got extra marital relations and so only never took any responsibility and is the main cause of separation. I do not want to use his money as he do not want to give so I feel I am not a beggar to survive with his monye who is a husband just for name. Whatever this may be but I want to know how can I get divorce in a normal way without alligations against me without mutual consent.

Its true that he might have fled all the wrong alligations against me. And will get divorce on that basis. So as there is not much time and I cant go there now so can I send any of my relative to attend the court as this will be last hearing? Then later I will attend. Mutual consent is not possible as there I will have to mention that I do not have any alligations against him which I do not want to do.

If my relative will attend and say that as she have got problems with her husband so she cant live with him and as he never took any responsibility of even child so the child should be kept with her only and that she also want to get divorce then will I get divorce on the normal basis without anything against me?

Or kinldy let me know how can I get divorce without any wrong alligations against me but only in a normal way without mutual consent. If no other alternate then only I will think about that.


 

 
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Advocate

If my relative will attend and say that as she have got problems with her husband so she cant live with him and as he never took any responsibility of even child so the child should be kept with her only and that she also want to get divorce then will I get divorce on the normal basis without anything against me?

It is not possible.  Generally, in most of the courts, the court will not entertain your relative to appear on your behalf and put submissions what you want to put before the court.  Only yourself or your advocate can do that thing.  That is why, my sincere advice to you is that you engage an honest advocate and give him your vakalatnama and ask him to prepare counter / reply (if you already received petition copy) and send him to the court with proper instructions.  If in your reply, you deny all the allegations he made against you and say that there is a desertion of more than two years between the spouses and at the end if you say, that you have no objection if he will be granted divorce, then there is a possibility the court may grant the divorce.  But you must be extra careful about the custody of the child.  If he will move an application under Section 26 and if you do not contest it, the custody rights may go to him.  Hence, engage a good and honest advocate to protect your interests.

Wish you best of luck.    


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