Ria (Legal) 19 August 2009

Setting aside of exparte order

Hi all,

Do you think that a husband in a divorce case who has defaulted in payment of interim maintenance for 1 year, failed to cross examine for 3 years, and failed to appear in the fast track court for more than 4 hearings even after getting notice of transfer of case to fast track court should be granted the application for setting aside of exparte order ?

I feel that some lawyers use setting aside of exparte order provision as their delay tactics, as they dont appear in the court for along time and when an exparte order is passed , suddenly they make an appearance in the court and file an application for setting aside of exparte order.

I think that in family matters the court should not be lenient in accepting an application to set aside exparte order, as this used to prolong the case again and cause undue delay and hardship to the other party who has been sincerely attending to the court proceedings.

I would request my colleagues to post their valuable opinion on this issue.

Regards,

Ria

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2 Replies

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com) 19 August 2009

Ria ji,

In matrimonial issued if husband will not appear then how wife will get execution of his judgment and who will pay the maintenance etc. Even if he appears then court always impose cost which is also in favour of wife.

Regards

adv.kamal.grover@gmail.com

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H.D.Kumaravelu (Advocate) 30 November 2009

Madam,

Applcaiton to set aside exparte orders can be filed within 30 days from the date of the order. If sufficient cause is shown by the petitioner/husband the court will permit him to contest the petition from the stage when he was set exparte. Not allowing a party to be heard when a justifiable reason is shown will be ground for the petitioner/husband to go on appeal, this will further drag the matter for years. Pls dont blame the advocates, they are there only to assist the parties as amicus curie in matrimonial proceedings.

As far as your case reference, you are having an order for payment of interim maintanance. Having the order you may inform the court that the application to set aside can be allowed subject to the petitioner/husband paying the arrears as on date and also on condition to cross examine the witness who is in the box. This will solve your issue.