Is witness needed
Amit
(Querist) 07 November 2012
This query is : Resolved
Hi,
I am fighting an annulment case based on fraud. As part of the evidence, we have marital advertisement filed by my wife few years ago. In the divorce petition, we mentioned that a relative has given us the ad which exposed the fraud.
This ad was given to us by a relative of my wife who is scared to come to court for witness. But we have the ad with us which is genuine beyond doubt.
Is it fine to just show the ad as an evidence or will the relative be asked to give witness that he indeed gave us the ad? I am asking this since I need to prove the date of discovery of the fraud. Just having the ad might prove the fraud but not the date of discovery. Is the witness crucial in mentioning the date?
Since he is refusing to come as witness (he is my wife's relative and hence does not want to antagonize her family), what are the remedies?
Thanks
ajay sethi
(Expert) 07 November 2012
since you have mentioned in the divorce pettion that relative gave you the ad it is advisable to examine said relative . in case relative declines you can produce the ad that was released in newspapers . on the date of release in papers you discovered fraud
Amit
(Querist) 07 November 2012
We have the ad and it's authenticity is undisputed. We can present that in the court.
My question is will the opposite party ask to cross examine the relative?
Also how do I prove the date of discovery if the relative declines to come forward?
Amit
(Querist) 08 November 2012
To give a better perspective, here's some more detail.
(1) The ad was published by my wife prior to our marriage, the ad is dated much before our marriage
(2) We did not see the ad prior to marriage
(3) After marriage, her relative showed us the ad the details in which contradicted what was told to us thus exposing the fraud
(4) We further investigated and found that we were cheated
(5) We filed annulment case but now need to prove not only fraud which we can comfortably prove but also the date of discovery of fraud which is the date on which her relative gave us the ad.
So my questions again are the same:
(1) Will he be asked to come to court?
(2) and if he refuses to come in the court, then how do we prove the date of discovery?
Sudhir Kumar, Advocate
(Expert) 08 November 2012
what was the ad? what was the cheating?
You need the evidence eof the perosn who showed you the ad and whose mention is already made.
what your lawyer has said on feasibility of hsi evidence.
Amit
(Querist) 08 November 2012
Ad was matrimonial ad.
Cheating was related to material facts.
We were told some facts before the marriage but those were wrong. We came to know about the fraud after the ad was shown to us after marriage by one of her relatives.
My advocate is not very clear on this. He says the fraud is easily provable but he is not very clear on date of discovery of the fraud in case the relative refuses to come to court.
V R SHROFF
(Expert) 08 November 2012
Amit,
Is Ad materially relevant??
u did not give contents of Ad, and it's relevancy, & what u want to prove to get what???
U said u were not aware of Ad, So it proves Ad did not affect ur decision to marry.
Do u get ground for divorce???
Is fraud serious enough??
Amit
(Querist) 08 November 2012
The ad she gave (which we did not see and was not shown to us prior to marriage) contained original facts. The material facts are date of birth and educational qualifications.
During marriage, wrong facts were disclosed (serious enough for annulment as there's huge difference between what was told and what is truth, I can discuss more details if you want me to).
After marriage, the ad was shown by her relative (to tell us about the fraud) by which we came to know the truth and hence discovered the fraud.
So the role and relevance of ad here is only to "bring forth the discovery of the fraud".
No cheating happened because of the ad but her cheating "came to be known to us" because of the ad.
Now we have evidence of
(1) What facts were disclosed to us
(2) The original facts
(3) The ad which contains the original facts after seeing which we came to know the fraud.
I hope it's clear now, let me know if otherwise.
To prove fraud, as far as I know, three things are needed
(a) Establishment of fraud
(b) Date of discovery of fraud
(c) No cohabitation after discovery of fraud
By the above mentioned evidences (a) is easily proven. (c) is also proven but it's also dependent on (b).
So I am stuck at (b) i.e., how do I prove the date of discovery of fraud.
If her relative comes forward and tells truth to the court that he indeed on such date showed the ad to us, then (b) would be proved. But in the absence of him coming to court, how do I prove the date of discovery?
How important is the proving of date of discovery? Thinking of it, I feel that in almost all cases it's very hard to prove the exact date of discovery. How can I convince the court then? How will courts come to a conclusion regarding this? My advocate says that presenting the ad is sufficient since court looks at probabilities too. Not sure I am convinced with this as it leaves the case to the conviction of judge whereas I want it to be fool proof.
ajay sethi
(Expert) 08 November 2012
in your petition you must not have not mentioned name of the relative who has informed you about the said ad . if you have specifically mentioned name of relative and he fails to depose then you have a problem in your hand .
Amit
(Querist) 08 November 2012
Thanks Ajay.
I have not mentioned the name but I have mentioned that a relative told us.
Will this be a problem?
Also what about the queries I asked above?
Amit
(Querist) 09 November 2012
What are the consequences of the witness not appearing?
I have the documentary evidence of fraud (ad and other materials) and since then no cohabitation has happened (wife accepted that no cohabitation has happened after certain date).
In light of this, how crucial is the witness going to be? I am certain he would not appear in court.
Amit
(Querist) 09 November 2012
What I am intending to ask in the absence of witness deposing in front of court and in the presence overwhelming evidence of fraud (along with common sense), will the court derive adverse implication because witness is not coming forward?
After all, date of discovery is very hard to prove in almost all fraud cases.
Amit
(Querist) 09 November 2012
Sorry, opening the thread for traction.
V R SHROFF
(Expert) 09 November 2012
are huge difference material for marriage??
Amit
(Querist) 09 November 2012
Sir Shroff,
Not clear what you are asking?
Do you mean to ask if the fraud is big enough to warrant divorce? The answer is yes.
V R SHROFF
(Expert) 09 November 2012
So name it , to understand and guide you.
Amit
(Querist) 09 November 2012
The fraud is related to age and educational qualifications.
Age diff told and real is 7yrs (most crucial for us).
Educational qual difference is also there but not significant (PG vs UG).
V R SHROFF
(Expert) 09 November 2012
wedding date?
dt filing div
dt u came to know ad?
Amit
(Querist) 09 November 2012
Wedding: Jun 2010
We were shown the ad on: Feb 2011
Ad is dated: 2007 (don't remember the month)
Divorce filed: May 2011
V R SHROFF
(Expert) 09 November 2012
OK THEN, You have a strong case.
But beware of defences:
If age factor was vital for you, Did you examine Age proof of wife??
Did it came in any way to enjoy your marital life/ cohabitation??
Is this the only and important marriage dispute, or you are trying to use it, to square on other problems??
Good Luck.
Amit
(Querist) 09 November 2012
Yes, we were told the wrong age and a wrong document was shown as proof. Apart from this she was an educated woman. So we did not have any doubts about her date of birth.
Yes, she's elder to me by 7rs which is not acceptable to me. I feel cheated. If it was one yr difference, that would have been tolerable.
I have issues with her bad behavior too but there are no other scores to settle.
But coming to my original question, how do I prove the date of discovery?
V R SHROFF
(Expert) 09 November 2012
Produce AD.+ get Orig from publisher / examine publisher
your friend , / or relative who is ready to depose in court can be examined that he inform you on the date that suit you.
I hope u have friends.
ok
Amit
(Querist) 09 November 2012
Thanks Shroff.
You mean to say get someone to depose in front of the court?
We do have the original ad and it's authenticity can be proved.
