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sivakumar anand (MANAGER)     27 December 2012

Divorce - exparte - advice rqd.

Dear Experts

MY friend's dad has applied for divoce against his mother on the basis of cruelty and obtained exparte divorce order before 4 years and not eexecuted it till yesterday. This order is not known to any of the family members as the summon and other communication is not known to them as my friend's mom is working in a other place and my friend's dad is always at home and doing some odd business.

Now My friend's dad is threatening my friend, his mother  and his minor brother to go out of the house.

My friend's dad has received the house from his father through partition.

My queries are

1. Is my friend , his brother is eligible to stay in the house ?

2.  Is there any appeal possible as the divorce decree is 4 years old ? If not any suit can be filed form maintenance ?

Request your valuable advise.

Thanks & Regards

Siva

 



Learning

 4 Replies

Tajobsindia (Senior Partner )     27 December 2012

 

 

Originally posted by : sivakumar anand

 

XXX

My queries are

1. Is my friend, his brother is eligible to stay in the house ?
Take: If minor then YES they have right to stay at the stated home. If major then father can at any time disown them and further as far as  dependency  on parents is concerned,  I consider that once  a person is  grown up,  educated  he  cannot  be asked to beg and  borrow from the parents.  I'm also of the opinion that the parents had done their duty of educating them and  now they  cannot be burdened to maintain grown up children hence if the facts are similar then they must take care of themselves away from fighting parents.

2.  Is there any appeal possible as the divorce decree is 4 years old ? If not any suit can be filed form maintenance?
Take: Yes in reference to context an Appeal is very much possible with condoning delay under limitation Act and it will be condoned and stated ex parte decree will be set aside and afresh case will proceed in Court. Further once ex parte decree  is set aside and trial starts afresh, wife if not working can very well may file maintenance application. 

 

sivakumar anand (MANAGER)     28 December 2012

Thank you Sir.

Will the Court the condone the delay for 4 years ? The exparte decree was passed on 10/08/2008 and the irony is my friend's mom is not aware about this and still staying in the same house.  We also wonder why my friends dad has not taken any steps to vacate her. During a recent quarrely only he has shown the decree and went to the police station and shown the decree to the police officals and gave a return complaint to vacate her from the house.

He wants My friend to go out of the house and wants the minor son to stay back with him

The following are some more facts

1. My friends dad has savings of about 35 lakhs received through a heriditary property deal and is in the bank.

2. An house on one ground in his name received through family partition from his father

3.  1/2 ground in the his name as well as his two brothers.

 

queries are

 

1. Can my major friend file a suit  for injunction not to sell the house or vacant land ?

2.  Can my friend's mom file a suit for maintenance or alimony now ?

Kindly advise

Thanks and Regards

Siva

 

 

Tajobsindia (Senior Partner )     28 December 2012

Observations first:

1. In first query you mentioned friend's mom working somewhere else. In second query you are mentioning she is staying in same house.

2. In first query you mentioned friend's dad received property via partition and in second query you are asking about injunction of the very properties.

 

Above being material from the briefs, now I am attempting my opinion on your second query;

 

Now your que. # 1: "Can my major friend file a suit for injunction not to sell the house or vacant land?"

Take: If the property of the grand father was his self acquired property then this property shall devolve to all his legal heir if he died intestate i.e. no testamentary document such as 'will' exist with regard to the property made by him during his life time. The grandson is not legal heir if his father is alive in such case, in case the father of the grandson died before the death of grand father then the grandson being son of the predeceased son get the share in the property which his father would have got, sharing that share along with his mother i.e. widow of his father. Hence in present facts situation your friend has no legal claim on mentioned properties since his father is alive and moreover the said properties are already partitioned off. My guess is by now your friend's father might have also initiated 'disowning' via paper publication of your friend who is now major. Here disowning means your friend has no legal right son properties including F/D of his father ! Your friend will discover this aspect the moment he approaches Court believe me as I see this query evolving thus prompted me to comment in such a way J

 

Further to your que. # 2: "Can my friend's mom file a suit for maintenance or alimony now?"

Take: Your friend's ex parted divorced mom is first required to set aside the ex parte divorce in jurisdiction Court whose brief details I suggested earlier on how to go about and yes even after 4 years the said ex parte decree can be set aside as the knowledge of it she and your major friend came to know just yesterday as you say in yoru above brief(s) and unless your friend and his mother act very fast via appointing locally an advocate via reference we will end up here just talking and talking. However to your question on alimony (full and final permanent maintenance to a divorced wife) if she is working lady then she is not entitled for alimony is my view. To your previous question on maintenance (interim maintenance while case on floor of a Court) once she attempts (succeeds) setting aside ex parte decree in divorce she can just 'file' for interim maintenance though being working lady but I still reserve my doubt that she will be able to get any interim maintenance during re-opened up ex parte divorce proceedings. However worth trying.

 

On your inference on F/D of 36 L etc. your major friend and his working mother has no claims over it till ex husband / natural father is alive. Yes, the minor child maintenance till he also becomes major as claim are always there but for the same your friends dad wants to keep the minor child with him which is what you say to us so the moment he says so in yet to open ex parte divorce case the reference Court will not grant maintenance for the minor brother of your friend as he is in safety, security and in welfare of his natural father's company is also my hi-tea view. However there may be few sips between cup and lips so until reference brief's mentioned case is re-opened up all finality as legal reply cannot forthcoming in one shot ! Please understand some limitations are there in internet queries where we have no access of actual court proceedings papers / decree sheet / final judgement etc. and related property papers are also not shown to us but just some queries by a third party are presented here and to these I can only give actual position and now it depends on your friend and his mom to do Chamber discussion with a reference advocate and set the wheel of law in motion. 

sivakumar anand (MANAGER)     28 December 2012

Dear Sir 

Thank you  so much for the elaborate answer. Few clarifications from my side. 

1.  I have mentioned that My friends mom is working elsewhere means , she travels daily 50 kms and come back and stay in the same house with her husband along with my friend and his minor brother.  During this process, it sems my friend's dad has forged her signature the summons sent to her. 

2. I have asked about the possibility for the  Injunction because, My friends wants to stop the sale of the property by his father. 

I will suggest them to consult an Advocate immediately .. 

Thanks and Regards

Siva 

 

 


 


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