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wack (FM)     26 May 2010

divorce under 27(1)(d), 36 and 38 of the special marriage ac


What are the options available to a woman who has filed for a divorce under 27(1)(d), 36 and 38 of the special marriage act?

Please note the following:

1. Notice has been well served, but husband refused to show up in court.

2. He quit a well paid job about 8 months back (just to avoid his responsibilities) and

3. presently claims to be unemployed and

4. is not paying even for children's upkeep for a long period.

5. How to bring him to justice?

6. Is ex-parte the only way to go?

7. After the verdict, if he still chooses to remain "unemployed", how will the woman get alimony and ensure he pays for children's maintenance?


 9 Replies

wack (FM)     27 May 2010

"Apart from legal provisions it is outright cruelty on your part since laws are biased in favour of woman." -- did not quite understand the meaning of "cruelty on your part" .. did you mean to say that the woman in question who has filed for divorce is cruel or you meant its cruel to her? I assume its the latter because husband had been extremely abusive and controlling and also tried to isolate the woman from her acquaintances.

sudalaimuthu, (Advocate and Tax Consultant sudalaipearls@rediffmail.com)     27 May 2010

first of all,  please clarify whether you had filed petition for Maintenance under  Criminal Procedure code along with this divorce petition. whether you are expecting maintenance from your husband. if not you have better possibility to get a  Expartee divorce decree.

wack (FM)     27 May 2010

whether you had filed petition for Maintenance under  Criminal Procedure code along with this divorce petition --Yes ..

whether you are expecting maintenance from your husband -- yes .. and also for kids

Have also sought an injunction for not to be evicted out of the dwelling unit.

What does the woman in question stand to gain/lose if she is given an ex-parte verdict in her favour in this particular case? How can a man get away with avoiding appearance, not defending and go scot free once ex-parte verdict is issued?

There has to be something within the law to bring him to book and make him honour his responsibilities. He has reneged on his commitments towards children as well!

micky (aaaa)     27 May 2010

I have similar questions. I have filed for divorce under 27(1)(d) of special  marriage act. I have also asked for maintenance from my husband. The notice is well served but my husband is not showing up. If i get Ex-partee verdict, then how will i get maintenance for myself and my children if my husband is not working? is there any way in law to make him pay for us? If i get ex-partee divorce then is there anything that i will  not be eligible to get which i can get being his wife?


Yes, Ms. Wack & Ms. Micky,

You please need not bother about his non-appearance in either divorce petition or in maintenance petition, if it is filed separately.

The law insists that the notice has to be served on the opposite party properly.  Once, it has been served and he receives the notice but does not appear then he will face all the consequences of ex-parte proceedings.  If he refuses to receive notice and the posal person/process server makes his remark on the notice saying that he refused to receive notice, then also exparte proceedings are initiated and your will be given exparte divorce decree.  I thnik you have no problem with that.

Now, the question comes about your maintenance issue.  Once ex-parte maintenance order is passed in your favour and in favour of your children, the following things arise:

(a)  If the order is under Section 24 or 25 of the HMA, You can move execution application for its implementation.  First of all it would be seen that if he has got property, it would be attached and sold and out of the sale proceeds, your maintenance will be paid.  If he has alienated from immovable property himself with malafide intention, then arrest warrants can be issued against him and till realisation, he may be put behind the bars.

(b)  Almost similar is the case in respect of maintenance petitions under Section 125.  In the case of maintenance under domestic violence Act (I strongly recommend you to file maintenance under domestic violence Act), the arrest orders can be issued against the husband if he does not pay maintenance and it is criminal prison, which is different to civil prison (you need not to understand the difference, but in your case, the criminal prison is beneficial to realize the maintenance).

I hope, I clarified all your doubts.

1 Like

wack (FM)     28 May 2010

@Prabhakar ... thank you so much for the guidance. Just a few small queries - you mention .. "If the order is under Section 24 or 25 of the HMA" ... this might sound silly, but can the order be  passed under an entirely different section than the petition originally filed? And what if it is NOT passed under those sections? Thanks..


Yes. Wack, you are correct.  If the marriage is under "special marriage Act", the maintenance order cannot be passed under the provisons of HMA.  That Section 24 (maintenance pendente lite) and Section 25 (permanent alimony and maintenance)  of HMA have got parameteria (equivalent) provisions in Special Marriage Act and if interim application has been moved under those sections, the maintenance would be provided only under those sections of that Act, Special Marriage Act.  The execution procedure is same in both the cases.  Thanks for correction.

micky (aaaa)     28 May 2010

Thank you so much Prabhakar. You gave me valuable information. Some more queries i have..as how long this procedure of recovery takes? do i need to give proofs of his property, assets etc? me and my husband stay in two different cities in far away states so it is difficult to keep track of his movements and i do not have such  resources. please advice


The execution procedure comes into play only when there is a maintenance order exists.  Hence, first obtain maintenance order.  If the immovable property is another State, then also, Civil Procedure Code provides the method to recover the maintenance amount out of that immovable property situated in other State by issuing appropriate order to the competent court having jurisdiction over that property.  You must nform the court about the details of immovable property, bank account (or at least the branch and bank details where his account is lying) etc. of the respondent in the execution proceedings.

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