LIVE Online Course on NDPS by Riva Pocha and Adv. Taraq Sayed. Starting from 24th May. Register Now!!
The Indian Constitution Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Srini 2009 (asdasdasd)     10 August 2008

Ex-Parte Divorce Decree

Hi,

My wife filed 498A and maintenance case(125 crpc) against me. I tried to settle the dispute amicably but she didn't cooperate for it. After two years I filed for divorce. As she had not attended the court, the court granted an ex-parte divorce. Even after 30 days also she hasn't filed any application to set aside the divorce decree.

Now she is coming forward to settle the dispute against certain amount to withdraw the cases. Do I need to file Mutual Divorce also in this settlement? Or Shall I set aside my divorce petition and submit the compromise memo to get contested divorce decree.

How to convert this ex-parte divorce into a confirmed divorce decree through this settlement. please suggest.

Venkat



Learning

 16 Replies

Tarun Kalra LL.M, M.B.A (advocate)     10 August 2008

you have ex parte decree, so you need not to fear, she can move to court for delay in filing application, and court may allow it, anc court may take her plea and start it again, but it is not necessory for court to accept her plea, your lawyer can object it. but it is better for future that you settle the dispute and present a copromise before the court, (if court accept the delay for filing her application against ex parte divorce decree)of take a divorce us 13b oh hma 1955, if it is possible.

Vijay Kumar (Advocate)     10 August 2008

I agree with Tarun Kalra.


 

Srini 2009 (asdasdasd)     12 August 2008

Dear Sirs,


Thanks for your replies.


That means it is better to have 13B decree compared to exparte decree.


Then Can I apply for 13 B now, even though I had exparte decree.


Or do I have to wait to get it set aside and withdraw the normal divorce petition and apply for 13 B. Please let me know.


Venkat

Srinivas.B.S.S.T ( Advocate)     12 August 2008

Mr. Venkat, I am very sorry to say but you cannot do any thing with
an exparte decree of divorce as the same is liable to be set aside at
any time by  a court of law of any stage. I mean if the trial
court dismisses the set aside exparte petition of your wife she can
knock the doors of High Court, where it will definetly be set aside. My
earnest advise to you is that settle the matter amicably, as your wife
is also coming forward for a compromise you can draft the terms of
compromise and let the advocate on behalf of your wife file a petition
to set aside the exparte order in the divorce petition filed by you.
Then you endorse no objection to the same so that the case will be
opened and restored to the file then file the compromise memo and the
Judge will record the same and grant divorce to you.


But
along with this you have to take steps for with drawal of criminal case
under 498A and not pressing of 125 Cr.P.C. case. A mere not press memo
signed by both your wife and her advocate will be sufficient for not
pressing the 125 Cr.P.C. case. But you have to findout the procedure
for closing the 498A case. Here in Andhra Pradesh they are posting the
case for a period of 90 days after filing a compromise memo and after
expiry of the period they are sending the case to Lok adalat for
recording the compromise. In such an event it will be better to seek
transfer of all the cases to Lok adalat by filing memos and record a
wholistic compromise in all the matter. Wish you all the best. IF you
need any further clarification you can contact me at s_bsst @yahoo.com
or can call me at 94401-20259

Srini 2009 (asdasdasd)     13 August 2008

Dear Srinivas Sir,


Many Thanks for your reply and definetly it guided me a right path.


The only problem is  as 498A case was filed in Delhi and I have to know the procedure to withdraw that case.


Thanks and Regards,


Venkat

Srinivas.B.S.S.T ( Advocate)     14 August 2008

All the best to you.

sanjay kumar patibandla (advocate)     01 September 2008

After settlement with your wife, advise your wife to file petition to seta side the exparty decree . Refer the above matter to LOK ADALATH and take an award by mentioning all the terms of compramise.

Guest (n/a)     07 September 2008

THE SEC 498A IPC IS NOT A COMPOUNDABLE OFFENCE U/S 320 CRIMINAL PROCEDURE CODE AND ACCORDINGLY YOUR WIFE CAN NOT WITHDRAW THE SAME MOREOVER HOW FAR THE EX PARTE DECREE IS CONCERNED YOUR WIFE CAN FILE APPLICATION FOR SETTING IT ASIDE AND FOR SUFFICIENT GROUNDS THAT CAN BE ALLOWED AND THEN YOU WILL HAVE TO CONTEST THE DIVORCE SUIT ON MERITS .MOREOVER YOU HAVE NOT MENTIONED THE GROUND ON WHICH YOU HAVE FILED THE DIVORCE SUIT BUT IN ANY CASE THE POINT OF FALSE IMPLICATION IN  498A AMOUNTS TO CRUELTY AND THE SAME CAN EVEN AT THIS STAGE IF THE EX PARTE DECREE IS SET ASIDE AND THE SUIT IS RESTORED CAN BE TAKEN AS AN ADDITIONAL GROUND FOR DIVORCE BY WAY OF AMENDMENT .AND IN CASE U R DESIREOUS OF GETTING RID OF 498A THEN THE ONLY WAY IS THAT SHE BECOME A HOSTILE WITNESS AT THE STAGE OF EVIDENCE

acsreddy (advocate)     24 May 2009

sir first of all the ex-parte decree is to be set aside then and compramse is to be recorded then u can cc of terms of compramise and award and file cc before the magistrate where case u/s498a is pending along with a joint memo by requesting the court to refer the case to the lokadalath,after 90days the lokadalath records the settelment

Pankaj Raj (HR)     13 March 2010

Sir

I got the second time Ex parte order for my divorce case as she didn't attend the court. Please let  me know the next steps to get the divorce from her.

 

Regards

Raj

Rajesh Kumar (studient)     26 April 2011

Sir My exwife filed 498a after 1 year again filed for Divorce and got ex-parte divorce decree when i was working abroad for 2 years.

498a Court and Divorce courts were different ( criminal & civil ) and in same town.

Actually, Summons went to wrong address which is my parents address.

They didn't take any summons sent by the court.

Does the ex-parte Divorce Decree usefull or need to apply again? can i set a side the ex-parte divorce decree?

Thanks in Advance

Rajesh

BlueMoon (NA)     01 February 2012

@Srinivas.B.S.S.T I have a doubt. After exparte decree is issued and before its set aside can guy go for second marriage and get it solamised?

In such case exparte divorce can not be set aside. Am I right?

Chaitanya_Lawyer_Mumbai (Lawyer)     01 February 2012

Ex-parte divorce decree needs to be communicated to other party.

if the ex-parte decree is not challenged within 30 days in higher court,both parties are free to marry with other person.

498a case needs to be faced on its merit then.it can be quashed by HC based on compromise between complainant & accused.

 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     01 February 2012

The period now is 90 days.

 

Rest is OK.

 

 


Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register  



Post a Suggestion for LCI Team
Post a Legal Query