Siddharth Kulkarni (Software professional) 14 July 2010

Citations

A Divorce case is pending in Family court and subsequently the
respondent instead of appearing in the family court applies for
transfer in high court.

The High Court approves the transfer petition but neither the
respondent nor her lawyer conveys it to the family court.

Later in time the Family court passes an exparte divorce decree in
favor or the applicant because respondent never appeared in the court
or applied for stray order or informed the family court in anyway of
the transfer order.

Now 6 months later the respondent files for set aside in the family
court and subsequently the family court sets it aside saying that
everything that happens after the high court transfer order is
infructous.

is this correct? or we can challenge it in high court? what are the chances?
are there any ruling of this kind for reference?

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3 Replies

SRIKANTH MYLAVARAPU (SENIOR OFFICER (LEGAL)) 15 July 2010

i didnot get u can u allobrate clearly.

Munirathnam (Scientist) 15 July 2010

Hi Kulkarni,

Similar case I have seen in which High Court ordered to transfer the case mean while lower court passed order. Later wife went to High Court again to cancel the order passed by the lower court and it happened.

So I would say not to go to High Court being you may not win it and cause financial loss to you. Just contest the case.

Without your notice how come High Court transfered the case. If you had the information that in high court transfer pettion is going on you should have told to the court to consider it.

Best thing is that you contes tthe case at transfered place or go to supreme court asking not to transfer the case if you have valid grounds.

(Guest)

There are several procedural lapses in both cases not only by respective parties but wven by trial cout as well as HC as I understand from your briefs.

1. It seems you are from husband side here in the brief and respondent herein is the wife. You probably filed divorce suit and she went to HC to transfer it to XYZ place. She might have filed a fictious address to service notice for your side's say on transfer. The notice was not processed served so even if notice was not served and even if HC has ex party transferred the suit then HC normally sends copy of its transfer Order to trial court to pack the records and send to such and such court where the Order wa sin favour of a party. Why this didnot happen and how come it was not done by a HC?

2. Now let us assume she played further tricks and didnot get the Tsfr. of records Order of HC sent to trial court in time before you got ex party Order then you still have grounds to reopen the HC case based on this procedure lapse and or fraud and or forgery whatever the further breifs may call upon in such situation.

3. Now, if the HC ordered transfer of Suit without hearing your side then how she can re-open a suit which has already been ex parited? Means was it not her duty to inform trial court in time to pack the records and send them to her Court of choice as per HC Order. A procedural lapse I don't think she can afford to do so.

4. Now, when you got this suit ex partied at trial court then what happened to final decree convey to your wife's side. Again procedural lapse. And before the ex party decree was no paper advertisement noted upon I don't see such narration in your brief and even process service to her before decree is also missing!

I per se simply did not get this two Courts procedure chains and your breif properly. Can you ask your advocate what happened where and when under which dates and put them chronologically here so to advise better by members?

Rgds.