Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Shalini (Engg)     10 February 2010

Ex-parte Divorce Law & Legal Definition

hi all,

Me and my husband are living separte from last 4 years.

I ma staying n Noida with my parents and he is in Gurgaon, but earlier My parents were in Kurukshetra.

Pleas tell me that can my husbad take benefit of this in getting ex party divorce, as our address has been chnaged and he can say that I dont know anything about my new  address,  but I am having the same mobile no which I was having 4 years back also.

One main thing happened  in between that we met with our families to settle the matter, but we cound not reach to any decision.Please suggest what should we do and how can we come to know that he has appealed for the same or filed a case like this.

regards

Shalini



Learning

 18 Replies

sugandh (student)     10 February 2010

shalini...y dont u initiate an action for divorce urself....newys u both r not putting up 2gthr...thru divorce, u'll also be entitled to get maintenance...and u might be knowing his address...so better file a suit for divorce in gurgaon itself.

Shalini (Engg)     10 February 2010

No, I dont want to do the same, I am not interested in maintennace as of now..

sugandh (student)     10 February 2010

Section 10. Judicial Separation

 

. - (1) Either party to a marriage, whether solemnized

before or after the commencement of this Act, may present a petition praying for a decree

of judicial separation on any of the grounds specified in sub-section (1) of section 13 and

in the case of a wife on any of the grounds on which a petition for divorce might have

been presented.

(2) Where a decree for judicial separation has been passed, it should no longer be

obligatory for the petitioner to cohabit with the respondent, but the Court may, on the

application by petition of either party and on being satisfied of the truth of the statements

made in such petition, rescind the decree, if he considers it just and reasonable to do so.

sugandh (student)     10 February 2010

section 13  (i-b), may be a ground in ur case..." has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition";

Shalini (Engg)     10 February 2010

Sorry Sugandh, but i didn't get you, can you please tell me the things in detail...

sugandh (student)     10 February 2010

heheh...k...i mean...he can ofcourse go for a decree of divorce..as section 13 is for ne of the spouses to initiate proceeding against the other...nd ur case lies under section 13(1)(i-b)...so its pssble fr him to do the same...!!

sugandh (student)     10 February 2010

but i dont understand...y u dont want a divorce...??

Daksh (Student)     10 February 2010

Respected Shaliniji,

If you are apprehending that behind your back your hubby might initiate some legal action and try to take undue advantage here is my simple and time tested solution :

1. You know his address shoot down a Speed Post acknowledgement letter stating that henceforth any further communication or process be addressed to you at this address only.

2.  There is a provision of Caveat under Civil Procedure Code you may resort to filing of Caveat which means that before filing any civil proceeding your hubby or his counsel has to serve the copy of the same to you.

3.  If you are not interested in taking the things head on right now then in my humble view try to explore mutual confident communication channel if you want to revive your relationship or going for the counselling together.

I hope this may clarify your query.

Thanks and best regards

Daksh

sugandh (student)     10 February 2010

dear daksh....if m not wrong...caveat is for appeals...wht if her hubby has already got a decree...under sec13(!)(i-b)...??...as its already 4 yrs of speration...nd her where abts r not known to her hubby....kindly throw sum light if u can...??..

N.K.Assumi (Advocate)     12 February 2010

I am of the view that as far as ex parte divorce is concerned, Order 8 rule 5(2) it is lawful for the court  to at once pronounce ex parte judgment except against defendant under disability, if despite opportunity defendant files no written statement. But in matrimonial proceedings an exception is curved out and a Judge cannot properly do so without personally examining the petitioner in an undefended case. a duty is also cast on the court to to make an endeavour to bring about a reconciliation between the parties before proceedings to grant any relief under the act. theaffidavit  of the husband or the wife only without anything more could not be treated to be good and sufficient evidence in the case and judgment could not be properly based on such affidavit. And I think there is an unanimity of opinion on this score among the various High courts in the Country.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     14 February 2010

ms. shalini,

normally court is very careful about the ex party decission. they try their best to find out the respondent. various rules are there.

even if he gave false information to the court, and upon it, he got the divorce order, it will nulify when you complain. such cases are also there.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     14 February 2010

Further, it is not clear to me whether you are interested in divorce or not. if you are interested for divorce, the best for you is mutual divorce, under sec 13b of hma.

"13B. Divorce by mutual consent.

(1)Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that

they have been living separately for a period of one year or more,

that they have not been able to live together and

that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that

a marriage has been solemnized and

that the averments in the petition are true,

pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree"

so far i understood you both are highly educated and financially self dependent. then either you take divorce or started living with him ie, consumate the marriage. every moment of a life is precious, quite unnecessarily, we should not waste it. could you bring your hubby in this club, by which we can get a chance to talk to her?

do you have any knowledge about his complain - if any?

can you not talk with him? will he displeased for it?

please you take initiative to break the ice. that will be more frutile.

Arup Kumar Gupta, Korba, Chattishgarh ((m)9893058429)     14 February 2010

please read 'to him' instead of 'to her?'

Shalini (Engg)     15 February 2010

Thanks Arup, for replying in such a beautiful manner...


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