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Daffodils ( )     07 July 2012

Tricky situation on exp divorce

Respected Learned Members,

One of my friend is in a tricky situation. He was married in 2005 and stayed together for one year. After wards she went to her parents place. He tried to restore the situation but didn't work out. So he filed rcr petition. She didn't come for the court but her lawyer appeared on her behalf and told that she couldn't come coz she is sick etc..
After several hearings the court passed exparte order.

After one year he filed for divorce on desertion and cruelty. She sent lawyer this time also but didn't appear even once. So this was also ordered exparte.

My friend waited for 3 months and remarried. This time he changed job to different city. But it seems that she has filed to set aside the exp divorce order. But summons was not served to him because of change of address. Now he is little scared if this would lead to legal complications. Is it adviceable for him to appear in the court and file a counter explaining the facts that he is already married and he was not aware of the case?

Kindly advice..



 8 Replies


Nothing will happen as you got divorce legally.

Throw some good amount on her face after hiring a good lawyer.

Daffodils ( )     07 July 2012

Thank you sir for your time and reply. Is it advicable to appear in the court now or to let her get an order in my absense and then we ll see later?

Sanjeev (Lawyer)     07 July 2012

let your lawyer appear in court dont let her get a set aside order.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     07 July 2012

Since you married after the period of appeal had run out i.e 90 days of ex parte divorce. Your second marriage is unimpeachable. Contest her application to set aside - since she had already defaulted in S.9 also which was ex parte - the facts are against her - it is writ large on the face of records that she is a defaulter and willingly refused to participate in the hearing, she wont be able to make out a case for setting aside as she has no sufficient cause. Furthermore in such cases the court has to balance equities the rights of subsequent wife cannot be disregarded completely. If argued correctly I dont see any chances of a setting aside.

Shantibhushan (Advocate)     07 July 2012

Dear Mr. Daffodils

I don't understand, why you r saying that the orders passed on your applications were ex-parte inspite of she being represented by a Lawyer. If a lawyer appears for opposite party and makes his representation that would not lead to ex-parte decision. Your story is incomplete, which raised quested as to whether the lawyer for your wife contested the application filed by you in both the matters, if yes, then the order is not an ex-parte. 

You wife has the right to set aside the order/jugment only within limitation period other she will have to explain the delay. However, the question still is open as to whether she contested the divorce through her lawyer or not by filing her reply/objections. If yes, then on what ground she is going to challenge the order of divorce.

Anyways, you are on a right track, as you got married after the limition period after the order. But if you came to know the fact that she has filed an appeal challenging the divorce order, you should take advice from a lawyer and represent your self in court and contest the appeal strongly to avoid any perverse situation in furture.

Adv. Chandrasekhar (Advocate)     07 July 2012

Appear in court with appropriate application with connected documents showing the date of divorce decree and the date of next marriage (which should be 90 days after the date of divorce decree) and you will get positive result.

Daffodils ( )     10 July 2012

Thank you all for your time and reply.


@shantibushan sir, In the rcr case they filed vakalatnama and was accepted by the court. But at one stage court order her to appear in person which they failed. So judge passed exparte order. In the div case, the judge didn't accept the vakalatnama but directed to appear in person which they failed and so he again passed exparte.

rajiv_lodha (zz)     11 July 2012

They had the right to pray for SET ASIDE the exparte proceedings. If they did not do this, ur decree is 100% valid

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