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Hello,nI have my Childe Custody along with Divorce case (Hindu Marriage Act) going on in the court s


10-Mar-2023 (In Divorce Law)
Hello,nI have my Childe Custody along with Divorce case (Hindu Marriage Act) going on in the court since 2 years, but my wife has not filed her written statement. My first lawyer never talked about this, not my 2nd lawyer is speaking about this. I believe I can get the exparte order, and take the custody of child and divorce, on the basis of not filling of written statement by my wife. But I read here (in one of your earlier replies) that exparte order is not always good option and fighting on merit is good?nQ1. Why?nQ2. Is it because the lawyers will get the chance of extend the case coz fighting on merit usually takes a year or 2 or more? (please don't mind the harshness)nQ3. If the opposite party is not filing the written statement and still can fight in the court, isn't that being biased?nQ4. If I get the exparte order I take my child back, and next month my wife files for an appeal in HC asking to take back the exparte order and HC grants it, do I have to return back my child?
Answers (3)

Answer #1
849 votes
matrimonial disputes especially child custody are sensitive issues for courts to determine and hence courts are inclined to seek presence of opponent before granting relief. there is difference between ex parte order and No WS order. Matter proceeds ex parte if opponent fails to appear in the case despite due service of summons. However if the child custody is involved, same will require courts to ensure presence. 2 years is a long period, and there are ways to ensure presence of opposite party. Disposal of case on merits is recommended option
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Advocate Amit Agashe

Adv. Amit Agashe

LawRato Pune | 100+ Answers
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Answer #2
643 votes
Answers to your queries are as follows Answer to query no.1 – in your case 2 years delay for filing of written statement is huge. You should move ex-partie application and get it granted at the earliest Answer to query no.2 – Lawyers fight for clients and all are not inclined to extend the case Answer to query no.3 – Judiciary is never biased. It happens that if results are not in our favor we feel that system is biased Answer to query no.4 – Every aggrieved person has the right to appeal and In India everyone has to follows the orders of the court
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Advocate Kuldeep Prakash Bakal

Adv. Kuldeep Prakash Bakal

LawRatoPune | 25+ Answers
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Answer #3
762 votes
Hello, You should get an Ex-Partee Decree of Child Custody in your favor if your wife is continuously not appearing in Court nor making her lawyer present and apper in Court to file her Written Statement. You cannot wait for them for eternity. You should take advantage of their carelessness and get an Ex-Partee Decree in your favour. If she files ab Appeal against this order, you will not directly have to return the child back to her custody. Arguments will happen along with presentation of evidence, that, who can take care of the child in a best possible manner and then the case will be decided on merits.
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Advocate Pankaj Bajaj

Adv. Pankaj Bajaj

LawRatoMumbai | 1000+ Answers
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