Anand Mishra (Consultant) 24 February 2012

Ex-parte divorce - pls some one explain?

Hi,

I need an expert advise on the following scenario [ This might look like a silly one, but need advise to solve this issue to make 2 families free ]:

1. There is a huge conflict between my sister and her husband. [ Conflict of thoughts mainly, its impossible for them to stay with each other, as things will worsen if they do so, both families have burnt their blood to settle down things between them, but nothing worked out. ]

2. The couple and even the family members including me don't want to see opposite party's faces at any cost.

The conclusion for the marriage is unfortunately and obviously DIVORCE.

Now my sister doesn't need any maintenance or alimony for her. As both husband and wife don't want to meet even once in court even for Mutual Consent divorce.

Is it possible that either husband or wife file divorce [ on what grounds ? ] and the other party doesn't respond and it becomes a divorce ex-parte ?

**Note: both the parties also doesn't want to hurt each other in anyways.

Are there any issues with this process ? Please help me with all pros and cons.

Just wanted to add that, I wanted to know how will it work in India, its a Hindu Marriage.

Thank you.

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8 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 24 February 2012

Dear Mr.Mishra,

What you basically desire is a sham judicial proceeding - wherein one party would file a divorce case and the other would not respondent and it would result in a ex parte divorce. Let me tell you that's called 'collusion' in the eyes of law. A collusive suit is a mock fight to show the court otherwise parties are at consent as to let it go dismissed. Court if comes to know about this it would dismiss the petition. And in any case courts have got smarter these days - even if the other party does not respondent - the court would ask the petitioner/one who files to still prove his grounds to the court and the court would also examine whether his conduct is such as to entitle him to court's favour i.e he is not the party at fault. These are the directions to all lower courts from Supreme Court of India. In any case even if the court is naive enough not to see through this contrivance it would still take some months before repeatedly notices are sent and they return unserved.

I am sure somebody must have advised you that ! but trust me go by legitimate means - let them see each other's faces at least two times in a case of Mutual Consent, for peace for all times to come

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 24 February 2012

I've written "respondent" it should be respond

Anand Mishra (Consultant) 24 February 2012

I agree Mr. Bharat. But the husband is hiding himself since 5 Months. We dont want to file any missing complaint or want to even get his parents harrased as they are 70+.

I don't want to blame anyone, but this is complete situational and I don't want my sister to wait for 2 Years to prove the grounds of Dissertion.

Some lawyers also suggested to file false 498 and DV. But I found that inhuman.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 24 February 2012

You did not mention that earlier. Then Mutual Consent is out of question. I am glad you've said no to 498A/DV Act - if ther is no dowry element involved. In this scenario you can go ahead with the divorce (unilaterally) since there is no collusion.