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SurNatChety (Private)     29 September 2017

Transfer petition in Supreme court

My wife has filed a transfer petition in Supreme court for transferring the divorce case filed by me. I am fine with this, so i thought i could let the case go on exparte. But my lawyer is suggesting that it would take close to two years to get ex parte in Supreme court and hence wants me to appear and provide my consent. Is it true that it would take long time to get ex parte in Supreme court?. The problem is even making a mere appearance of my lawyer in Supreme court comes with a heavy cost and it seems out of my reach. So please advice.


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 18 Replies

Vijay Raj Mahajan (Advocate)     29 September 2017

Ex-parte decision in any civil cases including divorce proceedings comes if the opposite party doesn't defend the case or agrees with the facts of the case thus allowing the decree in favour of the petitioner.

In your case if your wife has filled transfer petition in the Supreme Court of India for transfering your divorce petition filled at your city/state to her city/state in India, how come your advocate advice the transfer petition in SC will make your divorce petition proceeded Ex-parte? Is your advocate off his nuts?

Your wife will never agree for ex-parte proceedings of your divorce petition, rather if there is mediation done in the Supreme Court, any agreement with regard to divorce between both parties will result in divorce by mutual consent that is a new divorce proceedings to be filled jointly by both parties and not converting the present divorce petition in to the divorce by mutual consent petition.

The Supreme Court will order both parties to proceed with divorce by mutual consent petition to be filled jointly after withdrawing the present pending divorce petition filled by you.

 

vijaymahajan5758@gmail.com

1 Like

SHREY DAMBHARE   29 September 2017

Mahajan Sir, I beg your pardon to differ on your opinion. The querist has asked about exparte order in Transfer Petition. Transfer Petition itself is not divorce case. I think what his lawyer suggested is correct. If the querist also wants to transfer the case to any particular Court and he is ready to give consent then he just have to appear before the Court and his lawyer has to give consent. That's it. After that his divorce proceeding will be transferred from where the querist will get divorce. 

Vijay Raj Mahajan (Advocate)     29 September 2017

So the best in such case is for to withdraw the present divorce case if the petitioner not interested to contest the transfer petition in the Supreme Court. No pending divorce petition in Family Court will result in dismisal of transfer petition in the Supreme Court.

A new divorce case can always be filled at later stage in the jurisdiction which is suitable to the wife.

SHREY DAMBHARE   29 September 2017

Mahajan sir, then if he withdraws divorce case then that will make Transfer Petition infructuous. Since, Wife had filed Transfer Petition we can assume divorce case was filed by Husband otherwise why Supreme Court had entertained matter. The person who choose jurisdiction in divorce is Husband and defendant wife is not happy with it so she filed Transfer Petition.

Now why Husband should withdraw divorce case. If he has no problem to Transfer the matter then let the Supreme Court pass the order that’s it. 

Vijay Raj Mahajan (Advocate)     29 September 2017

The present divorce petition is still at its initial stage as in such cases the transfer petition are moved even before filling WS by the wife. The demand of wife for transfer to court of her choice is all about the matter and to save time the transfer petition becomes infructuous because of withdrawal of the divorce petition let it be. Wining the transfer petition boast the moral of the wife and getting the TP dismissed as infructuous will  make her frustrated. Withdrawing and filling a new petition for divorce is always open to the the husband anytime he so desire.

Divorce cases are all about how long one can hold the frustration of the litigation otherwise if both agree the dissolution now takes no time, not even waiting period of 6 months after the latest judgement of the Supreme Court of India.

SurNatChety (Private)     29 September 2017

Mr.Shrey is right and Mr.Vijay to got it on the wrong foot. I am talking about the exparte of the transfer petition and not my divorce petition. Will letting it go exparte takes a long time to transfer my casee?

SurNatChety (Private)     29 September 2017

Mr.Shrey is right and Mr.Vijay to got it on the wrong foot. I am talking about the exparte of the transfer petition and not my divorce petition. Will letting it go exparte takes a long time to transfer my casee?

SHREY DAMBHARE   29 September 2017

Mr. Chety, Since I am handling some Transfer Matters here in Supreme Court, my experiance is that there is no exparte order but some interim relief may have been granted. You once again check. However, if exparte order had been passed then you have one option is to file an I.A. in Supreme Court for setting aside ex-parte order but since you don't wish to file such I.A. then that exparte order is final. You yourself can file copy of exparte order in district court where matter was earlier pending or let your wife file exparte order in district court, once court came to notice of court that such order had been passed then atomatically your matter will be transferred. So, I don't see any two years waiting period here.  

SurNatChety (Private)     29 September 2017

There is no exparte order passed yet.So can i assume that even if i dont appear in the Supreme court, the exparte decision will be taken immediately and not drag for a long time.

Vijay Raj Mahajan (Advocate)     29 September 2017

Ex-parte order in Supreme Court will not come immediatly unless the court is completely satisfied that the notice has been served upon you. I can show you case where TP is pending since 3 years in SC and yet no Ex-parte order made as the court is not yet satisfied if notice has been served upon to the petitioner husband or not. Even newspaper publication order made for service of notice to the husband and even after that no order for transfer.

And the fact in that case that the divorce petition was withdrawn long back (3 years back) about which the district court had sent it report to the Supreme Court, yet no order for making TP infructuous made.

SurNatChety (Private)     29 September 2017

Thanks for all your replies

sai narayana   29 September 2017

To contest services of lawyers required. When there is no contest you yourself can appear in person and give your consent for transfer. That's it.

(Guest)

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Anamika Vichare (Practising Lawyer)     03 October 2017

I guess, in your case, you have filed first Divorce petition and your wife ight have filed DV or RCR in another court, where she wants to get your petition transferred.   Now lok instead of giving consent, you can bring these points on record.

 

1.  Firstly wife does not to have appear in your court, se can appear whenever her attendance is necessary.   You will pay her  traveing expnses

 

Many of the stages of procedure of law can b e handled through video conferencing.

If you want to file any answer, you can do this, n see her Transfer Petition will be dismissed.

Recently in my matter also, looking into our pleadings od Divorce Petition, say to Domestic Violece matter, Supremecourt dismissed Transfer Petition without waiting for our appearace n say.  We saved litigation cost,   So either keep quiet or file the above reply.  The matter was finished in 4 months

 


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