dc c 29 July 2023

Divorce case verge of getting dismissed after 5 years , submitted affidavit disappears in hc

I am an Indian-origin foreign national. I filed a divorce case in India against my wife in cruelty criteria. Marriage conducted according to Hindu marriage act & hence I applied for divorce at local district court, India, 5 years ago. My wife got it transferred to her locality where the high court is based. My wife was demanding many crores where even for a few lakhs I am not capable of, we are from a working middle-class family. My wife’s family is a well-established, rich background family, and politically well-connected. My wife has lied entirely in her affidavit and falsely accused me just because I filed the case under cruelty, stating I do not have any proof of cruelty and they have falsely stated about dowry harassment against my elderly parents where she never stayed with them and she was based abroad. Even they are openly admitting yes it is a false dowry case. Early this year, I submitted a counter-affidavit document to my lawyer with all the proofs highlighting the other party’s lies in their affidavit, my lawyer mentioned instead of submitting a counter-affidavit, better to proceed with cross-examination.

As my wife & her family was threatening me with bodily harm I couldn’t step into India for many years as I am afraid for my safety

Recent events are:

1. my elderly parent who is the POA couldn’t travel to the court, 4 hours’ drive last month. We mentioned to our lawyer that my parent can travel but we have been advised not to attend the court. the judge dismissed the case for non-appearance (just for one non-appearance).

2. The decision was appealed on the same day and I have been asked to submit a petition with notarised signature.

3. The forwarded document with the notary signature was rejected by the judge citing the template affidavit format, the front page is missing the standard address details.

4. Again I reforwarded the document (within the 1 month grace period) and submitted it before the month’s deadline in the High court despatch area

5. Before the month deadline with just 2 days to go, when the judge was requiring the submitted affidavit, the document mysteriously disappeared from the high court and the clerk mentioned the document couldn’t be found

My wife and her family already mentioned years back that they would trouble me till the end and after 5 years of application, the case hasn’t gone even for a single hearing, now the case is on the verge of getting dismissed entirely this month

I am helpless and clueless as to what I can do. I have submitted the 3 documents on time from abroad but one of the documents has disappeared from the high court in their premises, will the judge dismiss my case entirely based on the situation that the document isn’t available?

If it is dismissed, on what basis can I reapply? Can I reapply on the same cruelty criteria?

If dismissed, will the case restart from the start, like meditator meeting, wait for a year before the case will be re-heard etc?

Any thoughts on my case, any valuable suggestions that you could provide is highly appreciated

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3 Replies

T. Kalaiselvan, Advocate (Advocate) 30 July 2023

You have been thoroughly misguided about the concept of dismissal for default.

Your case was dismissed for default, hence you can file a restoration petition under order IX rule 9 CPC to restore the same.

It is not understood that why did you not send the application through your lawyer instead of sending it directly to the court.

Besides why should the application be sent to high court when the case is going on in the trial court.

It appears that you are under some misunderstanding hence you are not able to explain the details properly, instead you have written lengthy narration which do not carry any meaning.

Youy may better clarify the issues through your advocate because this dismissal means not that the entire case has been dismissed, you can get it restored.

If your lawyer is not responding properly you can always change the lawyer.

Dr. J C Vashista (Advocate ) 31 July 2023

Instead of coming under undue pressure tactics adopted by your wife and her rich/influenctial parents you will have to consult and engage a local prudent lawyer to protect your interest, wherein your name(s) of your parents can be deleted from the array of parties on the basis of facts/ documents submitted by you.

Your lawyer is the only and best person to get you desired relief(s) / result(s) from concerned / jurisdictional court.

dc c 15 August 2023

Thank you for your reply and for your valuable time. Apologies for the delay in reply, I was waiting for the judge's reply to provide further information.

To clarify, the case was transferred to the High Court from a Union territory court as my ex-wife created stories that she is unable to travel etc... and the affidavit documents were submitted to the HC only through my advocate. As I am based abroad, my influential Ex and her family filed a petition to cancel the Power Of Attorney POA a few years back, thinking the case would get dismissed as I am based abroad, and I wouldn't make the long travel to India as they were threatening with body harm. POA was accepted on my behalf. But the divorce case was in mediation between both lawyers for a long time (3 years +) in HC as the other party kept prolonging deliberately, extending the case indefinitely.

Now when the cross-examination application was about to be filed after 5 years (when the case was about to be heard by the judge as the mediation showed no result), our case got dismissed by the judge just for one non-appearance (our lawyer indicated not to appear in the HC and this happened on that day), and now the POA notarized document got missing. The judge is demanding that an exact notarised copy is produced which was submitted within the timeframe allocated by her in the HC. It is a known fact that anywhere in the world notary public won't backdate a document, so the document cannot be reproduced. But a new document can be produced but the judge won't accept it as it would have the current month date. This clearly shows the other party is trying all means to cancel the POA for many years and even now, thinking that would eventually make me travel to India and cause me harm. FYI, for 4 years I am unable to travel due to safety reasons posed by my Ex

Now, the judge has said the duplicate exact copy cannot be accepted as she would be questioned by other judges as to why a photocopy of the original was used. So the judge has asked the despatch clerk to continue the search. Not sure how long this would continue, already the case is running for 5 years (with not even a single trial being heard). They are making sure the case is canceled without any trace. It is clearly HC fault for misplacing one page of the POA affidavit and I am afraid they would cancel the case.

Questions:

1. Based on the above, could you please provide your opinion if the case will get canceled? Do I have any chance of the HC atleast accepting to hear my case ?(its been 5 years already)

2. is there a possibility the judge would accept the duplicate copy of the original if the search in the HC cupboard shows no result?

3. Is there a max timeframe the judge would take to conduct this search in HC premises?

4. If I can get the same notary public (based abroad) to sign a document indicating that all the previously submitted affidavits (can take a photocopy as I scanned all the originals) were indeed signed in her presence a couple of months back, will there be a chance the judge would accept this photocopies along with the one page that the notary public is vouching that the duplicates are indeed true document and the same?

5. The repetition document reads "PETITION FILED UNDER ORDER IX RULE 7 READ WITH SECTION 151 OF C.P.C" and not rule 9 as you have indicated, not sure of the difference. could you please clarify?

6. On what provisions the judge can accept the duplicate copy?

7. Do I have to file a case for this document missing inside the HC premises?

Thank you all for your valuable time, greatly appreciate your valuable input