Ex parte on Conjugal rights

 @ Author

1. You donot want maint. from him
2. You donot want maint. for your son from his father
3. You donot want to join him
4. You complain of beating during pregnancy
5. You complain of his other pleasure life
6. You want to re-open the case and anyhow it will be re-opened putting in S. 5 LA application for condonation of delay citing your overseas trip and Judiciary will be pleased to listen to you and re-open the case.
7. You want to produce as secondary evidence a letter of misconduct of his past issued from his office etc.


so out of all above what comes it is "what do you want now?"
1.1. 498a ? OR
1.2. DV ? OR
1.3 Divorce ? OR
1.4 Some writing of no. maint. to you and to child given to husband and or to his lawyer can't make your
present / future maint. claim subsist ! BTW. So ?

See I replied your main que. under para 6 but I want to know "what you now want by re-opening the case whose decree sheet is almost 60 days old and then 30 more days still left to file your condonation of delay means Appeal against ex Party decree in HMA proceedings ?"
BTW, it may not be of my concern as to what you want but in this enquiry is missing something so it seems............thus I asked to help you further.

Please tell me the consequences of the Exparte decision.

How to proceed further on my divorce case filed by me in December 2010.

What to do about my custody of my 3 year old son. I do not have enough knowledge about 498A or DV. Please advise what I should ask my lawyer in further proceeding the case.

How to prove his illicit relationship before the court . I dont want to spent my hard earned money on proving his illicit relationship. My lawyer says it is difficult to prove it in the court.

My lawyer said he will file an additinal petition citing my overseas trip. Can you explain on 498A or DV. I just need a Divorce from my husbhand with out any alimony or maintanance from his side.

@ Author

In simple paras if I may explain to you; if you only want divorce and is not interested in pmt. alimony for yourself and your child and do not want to file any criminal cases etc. then just send a neutral person to him and ask him if he also wants divorce minus any alimony payment further minus child visitation / custody. If he agrees to both then ask him to convert his RCR into Mutual Consent Divorce with compromise deed and wait for cooling period of 6 months between first and second motion and then both of you are free to walk opposite paths.


However, without knowing actually now what he is really interested in, it is slightly difficult to take you through all the criminal and civil laws para wise and procedures wise in one go. Hope you also understand certain limitations of free legal forums.


Feel him what he wants NOW then come back with his remarks subject experts here will take you further with their advise.
PS.: Some sort of communication is the key now that you have come back to India.

"My husbhand filed a case for conjugal rights and since I was abroad for the past one year I was not able to attend the family court sessions. Due to my absence and exparte decision has been passed on Feb 2011 in his favour for marital life."

Let me assume that in Feb. 2011, he has got an ex-parte favourable order for restitution of conjugal rights (RCR).  Am I correct?  If it is so, then you should not do any thing.  Wait for one year.  In the month of February, 2012 , you file a divorce petition under Section 13 (I A) (ii)of Hindu Marriage Act on the sole ground, that there was no execution of RCR decree.  You will get divorce decree without bothering to bring any additional evidence.  All this what I am saying is on the belief that he has got ex-parte decree of RCR in Feb. 2011.

As you do not need maintenance to you and your child there will be no problem.  As you are much interested in getting divorce decree, you need not go to understand what is S. 498-A and DV.

Regarding child custody, as long as child is in your custody, you need not bother about any thing and you need not move the court.  If he moves the court for child custody, engage a good advocate to protect your interests in respect of child.

Warm regards. 

@ Hema

Correction if you may permit me so:
Suits for the recovery of the wife, or for restitution of conjugal rights, must be instituted within two years from the time when possession or restitution is demanded and refused by Execution.
Reasoning:
1. Articles 34 and 345, Schedule II, makes no express provisions for such suits, and the retention of the wife by a third person, or the abstention to live together, would appear to be a continuing wrong within the meaning of S. 23 of the Act (Starling’s Ind. Limitation Act, 5^th edition, page 160). According to the Allahabad and Punjab Courts, a suit between Muhammadans, Hindus or Parsis for restitution of conjugal rights, even though brought more than two years after demand and refusal, was saved from the bar of limitation by S. 23, Limitation Act, and it was further held that the limitation applicable to such suits was Article 120 as read with section 23; and that such suits could never, practically, be barred….The Legislature, in omitting Articles 34 and 35 (of the Limitation Act, 1877) from the present Act of 1908, seems  to have adopted the view taken by the Allahabad and Punjab Courts.
(Rustomji’s Law of Limitation, 3rd ed., pp. 208, 209), (see now the 4^th ed., p. 269); 1912, 34 All. 412; 1912, 37 Bom. 393; 1935, 38 Bom. L.R. 502.

2. The cause of action consists in the wife absenting herself from her husband’s house without his consent and it must therefore be deemed to arise at his house

PS.: I offer myself for self correction but with authorities reference and commentaries on subject corrected if any!

When my Father contacted him last , his demand was that I have to sell the flat and give him 30 lacs. This flat was purchased by me on loan and Emi has been paid by me from my salary. The loan and the property is in my name. His only demand is he wants the flat to be sold and money to be given to him. The flat is in chennai and was purchased before my marriage. This is not agreeable by me.

@prasanthivasu.n

Why you should give your own property or money to husband?

You said the flat was purchased before my marriage, Emi has been paid by me from my salary,then dont give the flat or amount to your husband.A husband who beat you when you are pregnant ,is like a cruel animal.

you said,"I just need a Divorce from my husbhand with out any alimony or maintanance from his side"

Then ask for divorce and get divorce by mutual consent or if he not agree then file divorce case and also file 125 maintainance case ,he will be in pressure and thereafter give divorce to you.you said its your hard earned money than this is a shortcut method dont put your mind in 498A or Dv case etc.Ask directly to give divorce by mutual consent and if he says no than tell him to file divorce case and maintainance case not only for you but also for your kinds also.

Tajobsindia,

let me put the relevant facts of the case as narrated by the author in her first post.

1.  She filed a divorce case one year after the birth of her child, thereby she intends to get divorce.

2.  She did not tell the fate of this divorce case.  Further, she did not enquire how to deal with this case, if it was dismissed in default.

3.  Her husband filed RCR. 

4.  She could not follow-up as she was abroad.

5.  Her husband obtained ex-parte decision. (here I got doubt whether the court has ordered to proceed ex-parte or has already passed ex-parte decree of RCR.  So, in my reply, I assumed the latter).

6.  Now, she wants divorce and an ex-parte RCR is operating against her w.e.f. Feb. 2011.

Now, Section 13 (I A)

"Either party to a marriage,  whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:

(i)... ....

(ii) "that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties"

Simple interpretation and several judgments say that even the respondent can seek divorce and she can obtain the divorce saying that she did not comply the RCR decree.

Now what is the relevance of the paragraph quoted below from your response, in the above facts of the case?

How S.23 limitation Act comes into the picture?

Warm regards.

Corrected in the last few lines.

Tajobsindia,

let me put the relevant facts of the case as narrated by the author in her first post.

1.  She filed a divorce case one year after the birth of her child, thereby she intends to get divorce.

2.  She did not tell the fate of this divorce case.  Further, she did not enquire how to deal with this case, if it was dismissed in default.

3.  Her husband filed RCR. 

4.  She could not follow-up as she was abroad.

5.  Her husband obtained ex-parte decision. (here I got doubt whether the court has ordered to proceed ex-parte or has already passed ex-parte decree of RCR.  So, in my reply, I assumed the latter).

6.  Now, she wants divorce and an ex-parte RCR is operating against her w.e.f. Feb. 2011.

Now, Section 13 (I A)

"Either party to a marriage,  whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:

(i)... ....

(ii) "that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties"

Simple interpretation and several judgments say that even the respondent can seek divorce and she can obtain the divorce saying that she did not comply the RCR decree.

Now what is the relevance of the paragraph quoted below from your response, in the above facts of the case?

Suits for the recovery of the wife, or for restitution of conjugal rights, must be instituted within two years from the time when possession or restitution is demanded and refused by Execution.
 

How S.23 limitation Act comes into the picture?

Warm regards.

@ Hema

First the issue which I corrected was on time limit of filing of Execution Petition in a RCR Decree by JH by quoting Authorities, Law in hand, commentaries of legal authors and explanation thereof on to an answer of yours to wait ONE YEAR given to the author meaning thereby as per you limitation period to Execute RCR Decree expires by Feb. 2012 further assuming it was decreed in Feb. 2011.


BUT, my knowledge on subject matter says based on reply authorities and meaning given under correction reply it expires by Feb,. 2013 that is by two years and not by one year. I stand by my quoting of Section of Limitation Act which applies in RCR / Maint. as well as Law in hand supported by commentaries by Authors (Legal reference books with page nos. I quoted above) respectively.


If you may quote exact Authorities or commentries or Law I will go into it again. Hence till that time facts of this authors case is understood by me as well as picture of S. 13 (1a) is also understood and the only difference between our views is on RCR decree Execution time limit for which I repeat and stand by and say again that it is 2 years by which this husband of the author has time to Execute it and you say it is 1 year. It also means she has to wait for 2 years to file divorce and not one year !

Hope I clarified my standing?

Regards to you too.

Addendum

1. In civil cases especially matrimonial offence nature onece and or matrimonial wrongs the word INJURY applies which is legislative civil intent behind S. 23 Limitation Act if you see the object read with word and phrases as even interpreted by Hon'ble SC. 

My lawyer is demanding around INR 20,000 for restoring my divorce case and another 20,000 to  file condone reply for my case.  This is not including his personal fees. The total expense will run to 70,000 Rupees. Please advise if this is such a costly case. If so I dont think I have enough Finances to proceed the case. Please advise if there is any free Counsel I can pursue to proceed on my case. Since I'm jobless right now and I need my savings to support me and my child and pay the Homeloan EMI.

What will happen if I don't proceed on the case for few months till I get a job.

 Please also advise how to approach the free counsel in chennai.