Ex-parte Divorce in Delhi – Wife in Assam – How to Set Aside?

572 votes

To set aside the ex-parte order, file an application under Order 9 Rule 13 CPC. The limitation is 30 days, but delay can be condoned under Section 5 Limitation Act by citing the lawyer's negligence. She can appear via VC. Simultaneously, file a Transfer Petition in the Supreme Court to move the case from Delhi to Assam.

Advocate Yash Ajmani LawRato

744 votes

Hi there, yes the ex-parte order can be set aside an application for ex-parte can be condoned within 30days. The negligence of lawyer's cannot alone help you to get condonation, it will highly depend on the stage of the case and order already passed and if any prejudice will be caused to the other party. You can appear via VC in delhi courts but you'll have to seek permission from the court. At this stage transfer petition would not be recommended as it will not be on strong ground. However, the final decision regarding TP can be decided only when you share the details regarding the stage and order in case. It's advisable to contact me and provide requisite details to assist you better.

Advocate Ishan Parashar LawRato

841 votes

You can still recover the case if you act quickly. File an application to set aside the ex-parte order with delay condonation, show “sufficient cause” (distance + lawyer negligence), and seek VC appearance. Transfer is possible but should not delay the recall application.

Advocate Nikhil Karwal LawRato

684 votes

Set aside: Order IX Rule 7 CPC – If only ex-parte proceedings have been initiated and final judgment is not yet passed. Order IX Rule 13 CPC – If an ex-parte decree has already been passed. File an application under Order IX Rule 7 CPC before the same Family Court in Delhi seeking permission to participate in the proceedings. 30 days From date of decree, Application under Section 5 of Limitation Act for condonation of delay. Yes filing TP before Supreme Court will help but without solid reason Supreme Court doesn’t allow transfer.

Advocate Jayatee Chatterjee LawRato

925 votes

Hi The first and immediate course is to move an application before the same Court seeking recall of the ex parte order, along with a prayer that you be permitted to participate in the proceedings and file your reply/written statement, as the case may be. Yes. It is permissible to place on record that the earlier counsel failed to cooperate, did not keep you informed, and did not attend to the matter, resulting in the order being passed ex parte. That said, the point must be framed carefully: the emphasis should remain on absence of effective representation, lack of communication, and resultant prejudice, coupled with your diligence once you became aware. Courts are generally reluctant to allow parties to suffer irreparable prejudice for counsel’s lapses, provided the explanation is bona fide and the application is made without delay. Separately, you may institute a transfer petition before the Hon’ble Supreme Court of India seeking transfer of the proceedings to Assam, particularly if you are the wife and the inconvenience, safety concerns, or lack of support at the present place of litigation can be demonstrated. In matrimonial and connected proceedings, the Supreme Court frequently accords weight to the wife’s convenience, especially where she is residing at her parental home, has limited means, or has caregiving responsibilities. On that footing, there is a reasonable likelihood of the proceedings being transferred to Assam, subject to the overall facts, the nature of the case, and the balance of convenience. You may get in touch with me for further details. Upon review of the complete record and relevant documents, I can assist you in settling, drafting, and filing the requisite application for recall/setting aside of the ex parte order and the transfer petition, as may be advised, before the appropriate forum.

Advocate Pragati Srivastava LawRato