Legal Question in Family Law in India

help required- Ex parte divorce decree set aside
I am in government services in a transferable job.I obtained an exparte divorce decree on March 2006 and remaarried after the Bar period . MY ex spouse in March 2008 challenged the divorce decree in the same court which awared me the divorce decree on the grounds that notices were not served to her and she was away from the country in the forign land.
She claimed in her petiotion that she was away from 2003 April and returned back on june 2007 and hence the exparte verdict should be set aside .
I appeared in person in the court in july 2008 and challenged her petition.She was very much in india when things were being decided and notice / news paper advertisement were published to my utter surprise i have found that court ruling is in her favour and exparte decree has been set aside without verifying or any crosss examination of her or me.
I am remarried .I have a family which will expand soon .I got married after the bar period when the divorce decree was operable.I had no intention to deceive any body but now the court ruling is stating that i need to re contest the divorce with the ex spouse vide my initial petition n filed in aug 2005 . What shall i do?Whats my fault that court serving procedure were at fault.

Asked on 9/13/08, 10:52 am

3 Answers from Attorneys

Vishwa Arya Arya & Co.

0 users found helpful

0 attorneys agreed

Re: help required- Ex parte divorce decree set aside

In case you are aggrieved by the order whereby and whereunder the exparte decree had been set aside, your first remeady is to challenge that very order itself in the appellate court within thirty 30 days of the order. You have a valid ground of their being no evidence taken in support of her application and without evidence the application should not have been decided. Another reason which comes to my mind is that her application for setting aside the decree, in fact, had become infructuous as meanwhile you had got married and further the new family is also being extended. thirdly if she was in India which can be seen from her passport, then she has obtained the order by playing fraud upon the court. With these grounds and the other from record, you may file an appeal against the order.

Regards

Vishwa Arya

Answered on 9/13/08, 11:52 am

Mark as helpful

Sudershan Goel India Law Offices of Sudershan Goel - Advocate

0 users found helpful

0 attorneys agreed

Re: help required- Ex parte divorce decree set aside

Well, no body is at fault. You should file an appeal against the order setting aside ex parte decree. If you say that her statement that she was out of country during April 2003 to June 2007, you can simply request the court to ask her passport which shall all the details of foreign travel;

even foreign travel is not a ground for setting aside ex parte decree. you were required to effect service on her 'last known' address; and if that done, it will be a good service in law.

Appeal is your only remedy as of now.

Answered on 9/14/08, 5:00 am

Mark as helpful