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Marck (NA)     21 November 2013

X party in divorce case

Hi experts,

I need advice on getting divorce in a desertion case. My friend's husband has left her 8 months back with a kid (8 months old). It was an unhappy marriage and she would like to get divorce from him soon. I heard that since she doesn't know where he stays now (there is a chance that he is in his native), she can apply for divorce mentioning the address where they stayed together previously. He doesn't stay there now and hence the notice will be returned  and so the matter can be published in newspapers. If he doesn't respond then also, then the court can declare him as X party (not sure of the exact term) and grant divorce sooner. Is this possible?

He's not employed and doesn't own any property. Hence there's no point in asking for alimony or any money back. All she wants is the divorce to be obtained as soon as possible. Please advise.



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 11 Replies

T. Kalaiselvan, Advocate (Advocate)     21 November 2013

Yes it is possible.  You have a perfect answer in your own question.

Marck (NA)     21 November 2013

Thank you for the response Sir. Can you please explain this a bit detailed? like what happens if he comes to know of the divorce later and whether he can contest etc?

Rama chary Rachakonda (Secunderabad/Telangana state Highcourt practice watsapp no.9989324294 )     21 November 2013

Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.

Marck (NA)     22 November 2013

Hi Experts, Could you please suggest what happens if the X party divorce is obtained since the husband's address is not known and if he comes to know if this thing later and if he can contest in the court at a later stage? What happens if she is not in the country at that time?

 


(Guest)

Setting aside decree passed Ex-parte against the defendant/respondent is never so easy as the onus lies on the defendant/respondent to prove that not only the summons was not duly served on him/her or that he/she was prevented by any "sufficient cause" from appearing when the suit was called on for hearing;

 

As for the first part the service of summon through Registered Post, Court Process server, Newspaper publication, affixing of summons outside the door of the house/shop/office of the defendant/respondent are various modes which are carried out first by the trail court before proceeding Ex-parte against the defendant/respondent.

 

More so the Court after making order for Ex-parte proceedings record the evidence of the Plaintiff/Petitioner, consider the Plaint/Petition in question and based on the facts and circumstance pass any Ex-parte order/decree, it not that just immediately after passing order for ex-parte proceeding the order/decree is being passed, what this means the sufficient time is given for the defendant/respondent to come forward at any of these stages to get the ex-parte proceeding order revoked but if still such person is not doing so than he/she cannot be allowed to take advantage of his/her wrong and prevent the Plaintiff/Petitioner to avail the relief from the court.

 

As far if the summon was served upon such defendant/respondent but he/she was prevented to be present on the date fixed for his/her appearance, than in such case what has to be seen what was the "sufficient cause" for doing so, it not that such person avoids his/her appearance in the court without any "sufficient cause" , the court has to be satisfied for the reason or cause this person gives for the nonappearance. One cannot take the Civil Court for granted and move in and out of the courtroom as if you are moving in leisure park by not following the order of the court to appear on the fixed date and time you are committing contempt of court and in order you are not punished for this contempt (proceeding Ex-parte against you) you must give sufficient reason to the court to excuse your mistake.

 

Keeping in mind the Ex-parte decree of divorce passed by the Family Court and husband waiting for next 90 days the period of appeal, still there has been no move on the part of your sister’s ex-husband, you can go for remarriage as it is on no use sitting for anything to happen now from his side more so it will be very difficult for him to explain his move for getting the ex-parte decree of divorce revoked now.

 

 

In such cases it has been mostly decided by the Supreme Court as well many High Courts in India the spouse against whom ex-parte decree of divorce is passed is not getting much relief as far revoking the decree of divorce is concerned, maximum financial relief in the form of cost may be allowed to such spouse but that too depending on the facts and circumstance not in every case.


(Guest)

Later if he contests the ex-parte and if he gets set-aside order in his favor, then she would still be his wife. The decree obtained would be set-aside as its an ex-parte one. Its like benefit of doubt to the spouse.

 

Even after 90days appeal period, there are complications with an ex-parte decree. If she gets married to another man. That marriage may/may not be valid. It depends on various factors but he can get her charged with some serious criminal offenses like bigamy and other cheating cases...

 

Think and act if she/her family/her new husband/her new husband's family can bear such risk. In my opinion it is wise to go for Mutual consent divorce.


(Guest)

@HH

Shez author's friend and not sister :-) LOL :-) Dont hurt him ;-)

 

@Author

If she leaves the state and doesnt come back ever in her life then fine. Otherwise there would be some criminal cases hanging on her name. But as you said if hez not earning and no money then work hard and play even harder :P


(Guest)

How much time x-party divorce take? Is it possible within 2-3 months?

b.goheel   05 February 2016

How much time x-party divorce take? Is it possible within 2-3 months? -

to prakriti
pl. inform the opinion of ur lawyer.


(Guest)

he is saying - 2 months..

the case is like - i was married in 2005 and we live 4 years together. But now are living separtely since last 5 yeras. I was living 1st year in Hostel in the same city and then i moved out to another city without  informing her as i was very much tortured by her.. She then filled some false cases against me & my family..  Now Her lawyer has appraoched one of my friend and saying that she will apply for xparty divorce  but she need  money in return.. I agree to it but she is demanding 50% on her Statement and 50% on final Judgment..

Qusetion is -- Can she withdraw her application after statement & taking 50% money?

Is it advisable to give monely in such case.. as there will be no written agreement.. & I dont want to go into mutual as i dont trust her..

pls advice best way..


(Guest)

Dear Experts, Kindly advise?


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