CP (Engineer) 18 January 2017

Mutual consent divorce - wife does not appear in second moti

Hi - Me and my wife had filed for mutual consent divorce in family court in July 2016. Subsequently we got a date for January 2016 for the second motion as per the law of 6 months wait time.

Me and my wife have been seperated since January 2014, and since then she has been continuously stalling the legal process.

There is a very high possibility that she will not turn up in the second motion in January. I read a recent ruling from High Court that if either of the two parties fail to show up for second hearing after filing for mutual consent divorce, it amounts to mental cruelty.

My question: If I appear in the court (which I will) and she doesn't, will she face any repurcussions? Can I not be granted ex-parte divorce on the grounds that she has decided not to follow the court order and not appear in court without any written reason (like withdrawl of consent, disputing the initial motion filed) submitted that cite her absence?

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2 Replies

sai narayana 18 January 2017

her non-committal is cruelty, a ground for divorce under S13.(ia) of HMA for which you had to file a fresh petition in the court with the above said fact along with any other incidents of cruelty or desertion.

Vikas Jain (Advocate) 18 January 2017

I addition to Mr. Sai's statement, the contested divorce would require atleast 12-15 years of time frame. Assuming that even the Exparte decree is awarded, that won't solve your purpose, as it would be appealable within 30 days and 90 days as per the provisions of Family Court & HM Act respectively. Moreover the Hon'ble Apex Court has held that Section 23 of Hindu Marriage Act mandates that Court before granting decree of divorce has to satisfy itself that grounds for claiming relief exists and petitioner is not taking advantage of his own wrong or disability. Court has to make an effort to bring about re-conciliation between the parties therefore the provisions of Section 23[1][bb] require the Court to satisfy itself that consent for divorce under section 13[B] has not been obtained by force, fraud or undue influence.

Vikas Jain

Advocate