Court proceeding in divorce case
Law Querier
(Querist) 22 March 2013
This query is : Resolved
Wife (applicant) from Canada filed a divorce petition u/s. 13 (i) (1a) in family court by made POA (power of attorney) to her father in India. Husband (Opponent) does not want divorce. Wife had filed divorce petition before one year of marriage and she had made invalid POA. The POA was notarized by public notary of Canada instead of countersigned by Indian High commission/Consulate of Canada. Husband had mentioned these three points in his reply. 1). Divorce petition should not file before completion of one year of marriage u/s. 14 of HMA and 2). The power of attorney is not valid u/s 3 of the Diplomatic and Consular Officer’s act. 3). Wife be called to present in court to attend the divorce case. In each court date, wife’s father is presenting in Indian court. He put evidence against Husband and also appeared in cross examination. Now, Husband has also put evidence and on next day he will be present in his cross examination. My questions are 1) If divorce petition is applied before one year of marriage and opponent already mentioned in his reply than how can court keep continue the case? 2). There was already mentioned in opponent’s reply paper that the power of attorney is not maintained/ non valid according to law. Then, how can court granted to appear applicant’s father in court? 3).Can’t court order to present applicant instead of POA holder in court? I have asked these questions to my lawyer also. But, he replied that these is court proceeding. I want to know that is my lawyer’s telling is true? If it is not true than what can I do? Please. Thanks to read my query.
ajay sethi
(Expert) 22 March 2013
court will decide these issues at the stage of final hearing . although objections as to maintanability coud have been decide earlier . for leading evidence wife presence was necessary as she only has personal knowledge of the facts . her father cannot depose as to the said facts
Raj Kumar Makkad
(Expert) 22 March 2013
Move an application under Order 7 Rule 11 of CPC read with section 151 of CPC even at this stage when the evidence on the side of your wife has already been concluded and she didn't put her appearance for the purpose of her cross-examination. The question of maintainability is more relevant at this stage. Press the application.
Law Querier
(Querist) 23 March 2013
Thank you very much Mr. Makkad and Mr.Sethi. These information will very needful to me.
ajay sethi
(Expert) 23 March 2013
thanks for your appreciation
Law Querier
(Querist) 23 March 2013
Continue Query...Can Husband (opponent) apply under 7 rule 11 u/s. 151 of CPC though following stages have completed in divorce case? : Stages: 1.Petition from applicant side
2.Reply from opponent side 3.Evidence from applicant side 4.Cross-examination attended by POA from applicant side 5.Evidence from opponent side.
Raj Kumar Makkad
(Expert) 25 March 2013
Though there is no fixed stage for moving such application but after all it should be raised at reasonable time. When almost entire evidence has come on file, there is no use of raising such application and now case shall be decided on mertis only.
