Legal Question in Family Law in India

I want a consultation for my divorce case which is going on at Aligarh district court since August 2014. Here is very brief history of my case.

I got married on 2nd May 2013..hardly spent 9 days together and later I came back to my work place and she joined her work place at different city but afterwards she stopped receiving my phone calls and whenever I used to visit her, she used to abscond and make excuses for that, Later I came to know about her Adulterous behaviour so I filed Judicial separation on basis of cruelty and Adultery committed by her on September 2013 but she never responded to court summons and when one year had passed of my marriage then finally I filed divorce case on August 2014,subsequently withdrew my judicial separation petition.

Afterwards also court summons were sent to her but she did not respond at all, finally court summons served to her through publication only on February 2015 and court passed EX parte order subsequently in May 2015. I submitted all evidences of cruelty and adultery committed by her . Finally she appeared in the court in September 2015 after one year . Court cancelled its ex parte order and gave her opportunity to file her written statement in October 2015 although we strongly opposed that move but even after that she did not file any written statement within maximum outer limit of 90 days laid by supreme court neither she sought any extension period during this period.

Finally I moved an application on March 2016 under order 8 rule 10 to decree my case as she failed to reply even after 159 days had passed since her first appearance in the court but court did not pay any heed to my application. Finally my wife urged the court for mediation at this very late stage but i strongly opposed this move and told the court that its another delaying tactics by her to further delay the case but court didn�t pay any heed and accepted her application. Mediation also failed between us. Finally she filed her written statement after 185 days in April 2016 since court directed her to file written statement in October 2015 although we strongly opposed this by mentioning recent supreme court judgment (dated 4.12.2015 civil appeal no- 10941-10942) that written statement can not be taken up on record after 90 days and i provided supreme court copy also to the lower court regarding that supreme court order.

Present status of my case is that court did not decide my application that I moved on March 2016 under order 8 rule 10 to decree my case .So recently I moved to Allahabad high court (December 2016) for direction to lower court to disposed of my application under order 8 rule 10 and expedite my case. High court in its order mentioned my grievances about my application and directed the lower court to conclude all proceedings most expeditiously without unnecessary adjournments as per provision in section 21 B (2) as per hindu marriage act including disposed of my application under order 8 rule 10.

Recent Supreme court judgement dated 4.12.2015 Civil appeal No- 10941-10942 of 2013,New India Assurance Co Ltd Vs Hilli Multipurpose cold storage pvt ltd ..upheld its previous order in case of Dr JJ Merchant and Ors versus Shrinath Chaturvedi ..civil appeal -7975 of 2001 that Written statement must be filed within 90 days are mandatory not directory unless some extreme unavoidable circumstances like accident or some critical disease or any orther extreme circumstances

But in my case my wife neither sought any extension to file her written reply nor she appeared much personally in the court till now, she hardly appeared 6 times in total 30 court dates and I personally appeared almost in all dates. Now, again she is not appearing in the court since high court order.

So my query is very specific-

As per all above mentioned things as now again she stopped appearing in the court, what should be my next move in the lower court? As of now,lower court didnot decide my old application (March 2016) under order 8 rule 10,its still pending and recently i already moved an application in the lower court to decide my old application with high court order copy.

What should be my approach to the lower court? How to move an application in the lower court to decide my case? What should be the content in the application?

1.Should I move a fresh application again, reminding court again that her written statement can not be taken up on record as per recent supreme court guidelines and decide my old pending application under order 8 rule 10?

2.Or in view of her absentee from court hearing ,file a fresh application in the lower court to pass an ex-parte decree order?

3. OR any other legal remedy ?

1 Answer from Attorneys

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