Please advice -- order
Rajan
(Querist) 09 April 2013
This query is : Resolved
Dear Sirs,
Under Indian Divorce Act 1869 amend 2001 (christian religion)
Presented the petition for divorce in the grounds of adultery on -- 24.01.2001 under Indian Divorce Act 1869
The Indian Divorce Act 1869 was amended in -- 3.10.2001
Proof affadavit filed under the grounds of adultery, desertation and creulty on -- 20.10.2006
Presented IA to permit inclusion of grounds desertion and creulty on -- 20.10.2007 (based on the amendment of the act in 2001 including these grounds for divorce)
IA allowed and Amended petition for divorce on the grounds desertation and creulty and filed the amended petition on --- 29.01.2010 under Indian divorce act 1869 amend 2001
Since proof affiadavit was filed in 2006, it was informed that NO amendment or fresh proof affaidvit shall be permitted by the court
Sirs, kindly advice as the respondent has presented / mislead his argument in 2013 on adultery, deseration and creulty based on the proof affadavit filed in 2006 failing to inform the court that the amended petition allowed by the court in 2010 was with the grounds of desertation and creulty.
Due to his misleading the court pronounced the judgement on adultery based on the proof affadavit of 2006 and didnt consider the amended petition of 2010 that didnt have the grounds of adultery but had the only grounds of desertation and creulty.
Sirs, please advice if this judgement is valid OR once I get the judgement copy, should I present the review petition in the same district court informing that the grounds of adultery was not there in the amended petition allowed by the court in 2010.
Please advice
Devajyoti Barman
(Expert) 09 April 2013
Once the amendment is allowed the parties are allowed to file fresh affidavit in chief on changed facts.
Prefer appeal, the mistake would be corrected for sure.
Raj Kumar Makkad
(Expert) 09 April 2013
Appeal is the only remedy in the given case. Go to high court if the judgment has been passed by family court.
Rajan
(Querist) 10 April 2013
Dear Barman Sir
Dear Raj Kumar Sir
Thank you for your advice and will prefer for an appeal with high court at the earliest
Sir, can you please advice,
Main petition filed on 24.1.2001 - grounds of adultery
Proof affadivit filed on 20.10.2006 - grounds of adultery, desertation and creulty
Amended petition filed on 29/1/2010 - grounds of desertation and creulty
no fresh or any amendment to the Proof affadvait was made
In the above, Please advice
1. will the amended petition filed on 2010 shall have precedence over the main petition filed in 2001 and proof affadavit in 2006
2. will the amended affadvit be taken and considered as the final version of grounds for divorce
thanks for your advice
prabhakar singh
(Expert) 10 April 2013
You have all the three grounds:
1.The basic one,that is adultery,
2.The amended grounds dissertation and cruelty.
And you are entitled to a decree proving any of them be it adultery or dissertation or cruelty.
If you were cross examined after 2010 then you would be deemed to have adduced evidence on all three grounds in my opinion.
But if you were cross examined prior to incorporation of amendment when had no case of dissertation and cruelty your opponent did not cross you on evidence statement touching dissertation and cruelty,then as you did not file fresh evidence to prove dissertation and cruelty,then in my opinion you failed to prove these amended grounds.
But in case your opponent has cross examined you on the statement of these grounds even before it was not your case at the date of cross examination justice and equity now demands to consider entire evidence for entire petition inmy opinion.
Rajan
(Querist) 10 April 2013
Dear Experts Sirs,
Thank you for your advice, but would with respect bring the following to your information as I came across this information in one of the text books.
"The title of the pleadings will be "Amended Petition for Dissolution" and the documents need to contain ALL of the previously submitted information - including the information that does not change. Essentially the "Amended" documents take the place of the original documents so the amended pleadings need to be able to stand alone (meaning neither the judge nor the opposing party should have to look at the original documents to know what it is you are asking for). However the Amended Petition shall have the permitted inclusion or exclusion of grounds as prayer. Hence the Amended Petition filed and allowed shall supersede the petition presented earlier and the grounds of the Amended Petition shall prevail"
Kindly advice on the reference made in the text book. Thanks
Rajan
(Querist) 10 April 2013
Dear Singh Sir,
The cross examination was held in Dec 2012 and was NOT questioned on adultery but was questioned only on desertion and creulty based on the "Amended Petition for Divorce" and its grounds.
But in the arguments the respondent council hid the truth and fact about the "Amended Petition" and its grounds, but argued that the only grounds for divorce is adultery as per the main petition. Such hiding of fact of the "Amended Petition" and its grounds and only claiming the main petition and its grounds even though they are superseded by the "amended petition" ... the respondent council being a senior advocate of the region appearing against the party-in-person,.... the Hon'ble Judge relied on the counsel arguments and dismissed the petition based on main petition alone and without considering the "amended petition" and its grounds.
In fact, the main petition grounds was withdrawn or deleted in the "Amended petition" ... if it is so, will the judgement be a fair judgement as the judgement was issued on the grounds that was not not contested at all.
Kindly advice
Sudhir Kumar, Advocate
(Expert) 10 April 2013
it appears you already have a lawyer who knows the facts in full
Raj Kumar Makkad
(Expert) 10 April 2013
As you are already filed the case with the help of your lawyer, better to follow him.
Rajan
(Querist) 10 April 2013
Respected experts,
Please be informed and I respectfully submit that for the last 2 years I appear as Party-in-Person and thats why I always take liberty to come to this forum to educate myself to handle my own case.
I have respect for the learned advocates but the advocate whom appeared for me was good not for me but for respondent
Hope you will appreciate my situation and kindly advice on my last request
Devajyoti Barman
(Expert) 10 April 2013
After the amendment the court can not consider what had be deleted through amendnment.
Raj Kumar Makkad
(Expert) 10 April 2013
You make a PM in this regard so that your query may be replied with more seriousness.
Rajan
(Querist) 11 April 2013
Dear Sirs,
Thank you for your kind advice and assistance.
Kumar Sir, I will PM you with details.
Thanks
