Exparte divorce set aside.
Querist :
Anonymous
(Querist) 22 May 2010
This query is : Resolved
Sir,
I had obtained and ex parte divorce from my wife, But since I didn’t know where she was residing after she left my house my lawyers sent the summons to the wrong address, he also sent out a public notice through national news papers but again these news papers are not circulated where she stays. Now she has approached the court for maintenance as well as setting aside the divorce decree.She has appealed to the court after 5months as she was not aware of the divorce being granted.My lawyer at the time of my divorce had also mentioned that I may remarry after a period of 30 days which I did. He told me that if I remarry the court can never reverse its decision. I have a child with my ex wife but have not gone ahead with having a family with my current wife. My question to you sir is..
1. Can the court reverse its decision and If my ex wife succeeds in winning the case will that mean she and I are still married in the eyes of law?
2.If my ex wife proves the wrong address will my current marriage be null and void.
3. will the court not consider my current wife’s situation?
4.Can my current wife or my current wife’s family appeal against the decree of divorce since they married their daughter to me on the basis of this decree? my current wife and her family knew about my divorce?
5.Can the court force me to live with my ex wife if I don’t wish to?
6. According to my lawyer I remarried after 30 days will that also add to my problems?
Kindly help me….
.
Guest
(Expert) 22 May 2010
1. Can the court reverse its decision and If my ex wife succeeds in winning the case will that mean she and I are still married in the eyes of law?
Yes, subject to the condition that the course reverse its decision. You cannot definitely say that the course will reverse its decision.
2.If my ex wife proves the wrong address will my current marriage be null and void.
The court will see whether there is malafide intention in furnishing the wrong address of the wife. If it is not so and if you satisfy the court that the paper notification has also been there, the court may see all these things seriously but may let you off with heavy penalty, which may be paid to your wife. But all these are conjectures. The law has not been clearly defined on this point and it is with the discretionary attitude of the court, where the case is going on.
3. will the court not consider my current wife’s situation?
Yes. Certainly consider and it hangs heavily on the court' mind.
4.Can my current wife or my current wife’s family appeal against the decree of divorce since they married their daughter to me on the basis of this decree? my current wife and her family knew about my divorce?
Yes. She can move an application under Order 1 Rule 10 to implead her as necessary party because she wants to submit some substantial thing to the court.
5.Can the court force me to live with my ex wife if I don’t wish to?
No. At the most the court can set aside the ex-parte decree of divorce and later on, after full pledged trial, may (may not) dismiss your petition.
6. According to my lawyer I remarried after 30 days will that also add to my problems?
from 2003, the waiting period is 90 days and not 30 days. Why your advocate, firstly furnished the wrong address of your wife and later on misdirected you to marry before 90 days are expired. Any how, as it does not matter that much, because your first wife approached the court after 6 months.
At the end, precise answer is difficult to give in the given circumstances.
Pankaj Mehta
(Expert) 22 May 2010
MR.Prabhakar resolved ur querries very well. As far as setting aside of exparty decree is concerned, find out about the reason explained by ur wife for not approching the court within stipulated perioud od 30 days after passing of decree and contest this issue, generally couurts are liberal about setting aside of expartee decree, better u contest all this for long upto appellate courts and in future possibilities of amicable settlement may arise, if u can afford to pay handsome amount to ur diworced wife.
Sachin Bhatia
(Expert) 22 May 2010
Mr.Prabhakar resolved your querries very well.
V.V.RAMDAS
(Expert) 22 May 2010
I do agree with answers given by my friend Prbhakar. It is also true than atlast she will come for an settlement and ask for permanent alimony.
