Upgrad LLM

hc petion from husband after receiving divorce decree


Hi, I need an expert advice in what to do in the situation I am in. I got married in March 2007 and separated from my husband after 10 months of the marriage because of his atrocities towards me (suspicious behaviour, house arrest, physical and verbal abuse, dowry). I filed the divorce petition in November 2009 and received the decree in July 2010. I didn't claim for any alimony nor he gave any maintenance or my belongings back to me yet and I didn't ask because separating from such kind of person was a big thing for me and I was satisfied that I received the divorce decree. And now after 6 months, in this month of February, I received High Court appeal from my husband saying that he wants me back and he consideres himself a good and changed person. I know what I went through and what kind of a person he is and I don't like him and don't want to live with him anymore. In this case, may I know what should I do and since I don't like to make rounds to court, can I avoid that? Also, the expenses I incurred or going to incur because of the case, can I now file for maintenance or alimony? Your help/advice is greatly appreciated. Thank you in advance.

Lakshmi.

 
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Senior Partner

@ Author

1. It seems the decree you got so fast flat in 9 months wa s not contested by him and may be awarded as a ex party decree in divorce which he now has appealed before HC and prayed for restitution of his conjugal rights.


2. If you feel living with him is not possible then you stick to your trial court mentioned grounds before HC by hiring same Advocate who helped you in getting decree from trial Court as he has grip of your briefs and contest his advances before this superior Court.


3. Yes, the idea here is to resist his restitution demands by setting the standards of bar much much higher. Like seek relief for highest maint. / alimony and refusal to establish restitution due to controversial cruelties alleged before trial court and seek mediation therein.


4. With setting such high un-reasonable bar, HC after going through the procedure of trial Court culminating into decree sheet preparation will either set aside lower court Order and/or will hear you out and may direct for mediation to resolve the spouse issues and/or may remand the case back to dispose them as expeditiously as possible wherein your prayer for high maint. / alimony / litigation cost etc. will be tried expeditiously by trial Court since HC orders to such effect are there!.


5.
If you feel a chance be given to set matrimony on right track then you may concede before HC and start living in matrimonial home. One needs to try out as per his/her capacity and then only take such extreme steps. You are best Judge of your situations hence you shall take the final call.

 
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Lawyer

tajobsindia has presented all possible circumstances before you.

 

now seek help of your lawyer to present your case before the Hon'ble HC as per the actual facts of your case.

 
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Thank you very much for your replies.

Yes, I received an ex-party decree in divorce, I was the one who filed because of the very reason that I can't live with him anymore because of the facts. I will contact my lawyer and file for alimony/maintenance.

Lakshmi.

 
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propra

Lakshmi ji,

 

You are lucky to get it over in such a short duration!!! 

 

First of all is it an appeal against lower court decree or a set-aside application in HC?

If it is a set-aside application in HC (??) then it should have been first applied in trial court which passed the decree.

You wrote 'notice of an appeal from HC'. (HC just wants to hear your side first)

 

If you got ex-parte decree of divorce..............then it can't be an appeal.................If it was ex-parte decree, it should be set aside application alongwith 'condonation of delay'....nothing gets decided without giving a notice to other party first and hearing the both sides!!!

 

For Alimony and maintenance: Yes you can ask from your ex-husband.

 

Husband says 'he consideres himself a good and changed person' (Humorous!!! and amazing.....who gave him this idea to go to HC with this ecuse!!!)

This is an admission of his misconduct implicitly.

 

There is no such ground of .... appeal or appelate jurisdiction!!! (He should have gone to Hon President of India for clemency...but that is also not possible as it is a bilateral civil suit and not a criminal suit to condone his sentence!!!! Even Hon President CAN NOT compell a spouse to condone/relinquish his/her rights to seek relief over guilty spouses plea of clemency/'oneself procaliming to be a changed person'.

 

He had that chance during counselling sessions scheduled in the due process!!!

 

If he wants to get you back ...Ask him to come with 'marriage proposal' again!!! and Evaluate his proposal.

But he can't take legal recourse of 'appeal' in upper court to compell you go back!!! (But the very act of filing appeal.... isn't that displaying his dominating character behind the mask actually (true but hidden)??)

 

This happens in offices as well...................an employee is kickedout due to some misconduct....then he apologises...and expects the company that clemency be given and employee be reinstated...but its a discretion of the company!!..

 

Can that employee go in court 'over company's reluctance to take him back by giving clemency?'. He can say that he was wrongly dismissed from job without his fault...but not on the plea of a 'changed person'

 

 

To attend the proceedings and give reply ...and do ask for dismissal of appeal with heavy costs this time...with a detailed list of expediture incurred..travel/acco/legal/medical etc etc etc'.

 

If you can't afford a lawyer you can do it in-person as well.


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propra

If it is a ex-parte decree...then

he must have filed set-aside application+condonation of delay (to file set aside within time)

But he should have done it in trial court!!! Why did he go to HC directly?

 

Check if that was dismissed at trial court or not

 

Again he has admitted his guilt implicitly...hence if you submit your response in HC that reinstating of the trial can never exculpate husband from his misconduct  as he has implicitly admitted his guilt...there is no point to reinstate the trial.

 

Ex-parte decree is set aside if otherparty is able to convince the judge that 'due to compelling reasons one couldn't face the proceedings' and also 'one has strong reasons prima facie to show that one is innocent'.

 

Here in this case husband has admitted his fault (or atleast he has become submissive to the least to oblige to do as per wish of other spouse!!)

 

Only question is that "Do you want to relinquish your claim over his plea of pardon" (Order 2 rule 2)

 


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advocate

YOY HAVE TO APPEAR BEFORE H.C.IN  APPEAL IN PERSON /ADVOCATE. OTHERWISE APPEAL WILL DECIDED EX-PARTE.

 
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Eye Specialist

Advocate     Adinath........is   right.    You   must   attend    the   Hon'ble   High Court    either   personally   or   through    u'r   Lawyer.

 
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