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Amit   27 July 2015

What will happen if one is not present on mutual divorce 2nd

Dear Friends,

We have filled Mutual Divorce in the month of March and we are parents of 5 Years Old Daughter.

We both are working in different cities and presently child is with wife.

Presently my spouse has changed her contact number and not at all contactable, I am worried in case if she is changing her plan, so I would like to know what the court will decide if she is not present on 2nd Motion Date which is in Sept, 2015.

Further, I would like to mention that regarding child I was permitted to take her with me for 10 day after every 6 months with prior 24 hours intimation on sms and nothing else is mentioned in our first application. I also like to share that I belong to a joint family and taking child custody will not be an issue for me as we have two children at home of similar age groups and five elder persons including me. My wife is alone living with her working mother and her father is also working in a different state.

So, I would like to take your help/ advice on below points:

  1. What the court will decide if she will not present on 2nd Motion Date?
  2. Does she can claim for child maintenance? Irrespective of she is earning more than me.
  3. May I get the child custody as I have good family support and environment to take care of child?

Thanks and Regards,


 8 Replies

prabhakar advocate (advocate)     27 July 2015

First find out her present address and then only you can take steps for MCD, child custody and child visitation.  Without knowing her address, you cannot move further.  If you still feel difficulty to find out her address, there is one option for you to move for ex-parte orders in MCD as well as child custody case.  It looks odd, if I say that ex-parte in MCD.  But it is possible.  Ask your advocate to put some hardwork to find out the judgments in that regard, where wife's absence in the second motion entitles the husband to get divorce decree.

1 Like

Amit   28 July 2015

Dear Mr. Prabhakar,

Thanks for your kind response, I have the address of my wife's parental house and she is presently staying there, this is confirmed from some of our family friends staying in the same city, I am able to speak to him on her office land line, but she is not ready to discuss anything and just spoke that she need the name of child in my property.

I am ready to take the child custody, so in case if she is not present on send motion date which is very close. Does the court will give another date or dismiss the case and I have to apply a fresh case again.

Thanks and Regards,



Jothish Kumar (Consultant)     28 July 2015

Dear Amit No Ex Partee decree in mutual consent divorce. The petition will have to be dismissed, if one party not appearing or say "No". Then you should opt for Contested Divorce.
1 Like


When is the next motion?If she does not turn up continously then the petition will be dismissed.Mother has the natural right of the girl child ,till she becomes a major.I presume U R visualising too many things to happen,wait for the next motion.

prabhakar advocate (advocate)     28 July 2015

Why did you say in your first post that you did not know her contact number?  The court does not need contact number.  So, serve a legal notice to her residential as well as office address calling her to come for second motion.  I will quote two cases - In Subhajyati Mazumdar Vs. Arunima Mazumdar - I (1992) DMC 15 (DB)- Calcutta High Court - in second motion wife did not appear and husband got divorce decree.  Next case Rachna Jain Vs. Neeraj Jain - II (2006) DMC 410 -Husband has withdrawn his consent, but wife got divorce.

So, you take appropriate steps.

Next, your wife has got a right to seek maintenance to the child irrespective of whatever happens in divorce case.  She will get it.  If you want to file custody case, you have to file it from the place where the child ordinarily resides.  If the child is living in the place where she works, you have to file the case there only.  For me it appears correct that if she asks property rights for the child.  Only on moral grounds.  Legally, you are the absolute owner of your self acquired property and neither your wife nor your child has got any legal right. But if you ascertain your legal right and refuse to give some property to the child, naturally you face hardship to win custody case and liberal visitation rights.

1 Like

pleasant   28 July 2015

whom to believe ? no doubt ld. adv. do give example of two judgement in the favour of his advice. however general belief is prevailed as per advice of others.

requesting other ld. sr. advocate to put some light on it.

1 Like


Mr.Pleasant are U and Amit one and the same

Amit   29 July 2015

Dear Mr. Prabhakar,

I highly appreciate your time in writing to us, during our first motion we both signed the application where it was mentioned that I can take my daughter with me for 10 days after every six months with prior 24 hours intimation on sms.

Now my query is:

Query No. 1: Is I am bound to pay maintenance for child, though nothing was mentioned in the first motion application and if permissible I am ready to take child custody as well. In case child custody is with me definitely child will only be the owner of my whole property.

Query No. 2: I would like to know that below  points are sufficient for taking child custody:

  1. Her admission is continued at the place I live in a very renowned school as I am submitting her school fees till date, whereas at my wife’s place no such school is available. I would also like to mention that child left my city in April this year only.
  2. My wife is presently staying with her working mother as her father is working at some different state.
  3. I also like to share that I belong to a joint family and taking child custody will not be an issue for me as we have two children at home of similar age groups and five elder persons including me.

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