Venkat (XYZ) 17 November 2011

Exparte divorce decree

Hi,

Husband got exparte divorce decree on adultry,cruelty and desertion grounds. Even though the wife and adultrer received the summons and have knowledge about the case, both didn't filed any counter and didn't the contest the case. Thus exparte decree granted. But after 700 days wife filed a sec 5 limitation act petition to condone the delay to contest the case. Initially she added the adultrer as respondent 2, but after 2 hearings she filed a not press memo to remove repondent 2(adultrer's) name from the sec 5 limitation act petition and court allowed that memo and removed the adltrer's name. Later Husband filed a counter to the petition filed by wife u/s sec 5 of limitation act and mentioned about the facts that both wife and the adulter have knowledge about the case as well as decree but didn't turn up with in 90 days of the date of decree pronouncement. Reply to that the wife filed counter saying that she didn't know the respondent 2( the adultrer at all).

At this stage can the husband request the court to add the adultrer as part of the petition (as respondent 2 ) by submitting the proofs which shows the relationship between both of them. Will it be helpful to the husband at this stage??

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5 Replies

sridhar pasumarthy (ADVOCATE) 17 November 2011

Dear Venkat,

In a petition to set aside the exparte decree/to condone the delay, whether the adulterer was shown as respondent or not as a responent, it will not affect ur case.

Normally, courts will take liberal approach in allowing petitions under sec 5 of limitation act, if the petitioner is able to show sufficient cause for delay.

(Guest)

Court will condone the delay and she can always add co respondents and state that it took her lotsa time to find out the name and adress of your mistress. DONT QUOTE KATJU HERE,IT DOESNT WORK and Marvin case came later and the "learned" Justice Kathju was billsfully unaware of the history behind the Marvin case.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com) 18 November 2011

Mr. sridhar is right

Dalip Kumar Chhabra (Advocate) 18 November 2011

So far my little knowledge says, in proceedings under order 9 rule 13, no addition or delition of any one is allowed. Nor any one, like you/respondent/person proceeded exparte , to these supplimentary proceedings, has any right to drop a person , already a party to main petition. First your application under section 5 shall be decided on facts and circumstances and only thereafter your application for setting aside exparte decree can be taken, heard and decided.

second thing, I am not in agreement with Mr. Sidharth and others commented.. as per your own admission you and the adulteror had had been duly summoned and thus had due knowledge to represent your case, but since you did not respond to the pending proceedings, thus in view of well settled law cited in 2008 ( civil court cases) , the Supreme court of India has held that the decree can not be set aside. Even otherwise, since you had the knowledge of pending proceedings, and thus proceeded exparte, now as per other settled proposition of law - a valuable right has also arisen in favour of husband or other spouse /petitioner to divorce petition.. thus that valuable right so accrued cannot be taken away by taking "LIBERAL APPROACH" to decide section 5 limitation Act's application.

Quary itself has big hole therein. So it is not easy to get the decree set aside -in view of facts narrated by you.

Yet do not loose heart.

Venkat (XYZ) 19 November 2011

Dear Dilip Sir and others,

I'm on husband side...

@Dilip Sir

Could you please provide the Supreme Court citation where the decree was not set -aside. (2008 ( civil court cases)) ..

Here now at the condonation of limitation stage, should husband request for the respondent 2 (in the original Petition i.e. adltrer) as part of the case...

Kindly provide the citations where the decree was not set aside due insuffuicient cause shown for delay...