B. Patel (it) 05 September 2013

How much time need to wait for decree

Dear Sir,

Last year I got very good suggestions from here and followed it. I could save me at some extent.

Thanks to Adv. Bharat Chugh Sir and all other who gave me suggestions.

Now I need suggestion on few more points.

Based on our cast's custom, I got divorce in April 2013. We signed papers and notarized it. We have applied for decree on May 2013. I have two kids so I insisted my ex-wife for mediation / re-conciliation but she is not ready to consider it. She wants divorce only. Other big point is decree case was filed by her advocate on name of me (Like I am asking for divorce) as advocate is relative from both side but more from her side. He told me that trust me that does not make any difference.

Points are :

1. How much time court will take to proceed for decree? Total 6 months or after 6 months only, my case will be started? As per new rule, cooling period cannot be waived off? Does it make any difference who filed case?

2. As per Mr. Advocate, case will not come for hearing before 6 month and we cannot do anything. Can not request ownarable judge to process it.

3. Last month on 27th there was date and I went to court. Mr. Advocate told me that he has already told his assistant to take next date. I don't understand that. He did not even try to speak with judge but directly took date. He never informed me about past hearing dates in and next month date also.

4. Can me make request to ownarable judge to proceed the case? Now when she is not ready, and we have custom based divorced, I also don't want to wait for her. Almost two years gone but she is not ready to come back even though she had made big mistake in life and I am ready to forget everything.

I feel Mr. Advocate is cheating me and not proceeding my case. I heard that when we have already signed divorce paper, court could give decree in 3- 6 months. No need to wait for 6 moths cooling period.

Please advice me. Can I change my Advocate? If my case can be processed before 6 months I am ready to change lawyer also.

5. As per points in our divorce papers, she allows me to take my kids outside but she tells my kids not to come to my house. I don't take kids to my house so that kids not get upset and to avoid any words from her mother.

6. As per Mr. Advocate, I can not take custody of my kids as court will not allow, in any case mother will get custody, court will ask kids questions. If court will ask questions to my kids, they will prefer mother for sure. They don't have any problem and they say that if will come to you if mummy comes. They want both and if any one then mother...

I don't want to disturb kids and don't want to separate out even brother and sister (my kids daughter and son), how can I get kids custody? Can I get custody of one kid? Does court allows custody of one kid to me and one to my Ex?

Thanks in advance for your valuable suggestions.

Regards

Patel

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1 Replies

Tajobsindia (Senior Partner ) 06 September 2013

1. The customary divorce being valid custom in parties communities has to be specifically plead in the Petition that has been filed. Evidence of community having such customs have to be lead. Then Decree sheet is prepared. I’m not sure of the content of petition that has been filed by your wife’s Advocate so cannot say if Decree can be granted or not based on customary Divorce Deed as exhibit annexed with such Petition.

2. Normally based on workload of concerned Court date of hearing is allotted. Average it takes 3 months pan India for the first date. On first date if both parties present then evidence are asked to be filed in such suit matters for Court to do an inquiry.

3. Even if in Divorce Deed which you are talking here the Deed states in relevant Para parties dissolve their Marriage via Mutual Consent the ‘cooling period’ that you refer to is not valid when you approach Court for Decree as the matter is cometh under S. 29 (2) HMA and not under S. 13 B HMA where 6 months cooling period etc. are cause of the Order. There is a fine difference which you should be aware of when you are seeking very specific relief from Court.

4. Advocate taking adjournment without informing party(ies) is your and Advocates service provider – client relationship matter and I should not comment as to what were the reasons or strategy Advocate and client are playing with each other as it is question of facts.

5. It is upto you if an Advocate is not providing service as per commitment then one may or may not change and it is very subjective question which client should themselves solve.

6. Regarding cooling period I have already outlined in para 3.

7. Regarding she agreeing or not agreeing now since a Petition seeking relief for Decree Sheet is pending it is better if you lead ‘customs prevailing’ in community evidence so that Court comes to conclusion based on material facts and evidences lead by you that indeed the Divorce Deed annexed with petition is as per customary practices and the case is fit to dissolve parties marriage and Decree Sheet be prepared.

8. For custody / visitation of Children in the Divorce Deed under parties customary mutual consent same could have been incorporated as mutually agreed. Now if you agitate at the time of seeking a Decree Sheet then the matter will be dismissed as under S. 29 (2) HMA Court has not much Power to decide on custody – visitation of children.

9. I suggest seek opinion on your Divorce Deed and basic evidences of customary practices with another seasoned local Advocate and act accordingly as coule of modalities which ought to have been done with are missing in your thread posting before me except I see everywhere agitation that now Deed of Divorce is there and she not agreeing so Court should give Decree ASAP and also decide on custody – visitation of children too! However I'm not doubting abotu cusotms but still I feel some misisng points and I mentioned clearly about them in this and previous paras, rest is your overall call to take.