Divorce - evidence for ws opposing divorce

Pooja, I'm not an advocate. Considering that you would like to patch up with your husband, I would suggest you to be careful about any evidence that might create more anger to your husband side. The husband and wife relationship succeeds when both parties have trust, patience and respect towards other spouse. Considering that you have good relationship with some of your husband's relatives try to expedite the process of mediation to join back with your husband. By the way, on what grounds did your husband filed for divorce? Did you filed any cases against him? Good luck and all the best

Pooja, your queries suggest that you are ready to become an advocate, at least in your own case as they reflect an understanding of the process. Here are my answers and hope that you will represent yourself ASAP.

a) During my cross examination, if the opposite party asks me some question and I realize that I have some good evidence which can be produced for that question.....but it is not filed by me in court. Then can i produce it later on the next date ?

Good evidence should be filed at the earliest. There is no need to wait until a question is asked. Just file an application seeking to supplement or amend your affidavit. If you file it before the cross-ends, it will be easier for the Judge to accept it as it gives opportunity to the opposing party to cross-examine you on it. Even after your cross is over, you can file it providing some justification for not filing it earlier.

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b) There could be some relevant evidence on cell phone instrument sometimes. Can that be shown in court during cross-examination. I mean if its has not been submitted for some reason or another, but it is available. Then will the judge entertain it ?

Again, you should reference such electronic data in your affidavit and quote the exact email/SMS in your affidavit mentioning that you will bring the evidence during your cross-examination and that if the Court or opposing party needs to verify it, you would gladly do so.  If the authenticity is questioned and the evidence is very compelling, you should file an application to summon relevant officers of the ISP or Mobile carrier officers with a Court Order compelling them to verify the authenticity of the specific e-evidence.

 

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c) Suppose I submit evidence. After that in-laws or hubby do something that can go against them and make my case stronger instead. How do I keep the judge informed of this new development ?

New evidence can be based upon new facts or newly discovered evidence. The procedure to be followed to bring it before the Court and get it recorded as an exhibit is based upon the status of your case. If your cross is not over, file an application to supplement your affidavit and get the new evidence in. If your cross is over but the other party's cross is not over, present the evidence during his cross. If all cross-examinations are over, file an application to "recall the witness" or summon the witness in which you present the new evidence and then have the opposing party or the party/witness  to whom the evidence applies on the stand and present the new evidence. Recall is merely summoning a witness already cross-examined.

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Finally... and this is VERY IMPORTANT:  Make sure that all documents, electronic evidence or any material used as evidence is EXHIBITED by getting it marked a specific Exhibit number. You should then reference the exhibit number in your final arguments. This is something that 90% of advocates do not bother to do or confirm that it is done or know that this should be done. I suffered from this in my initial stages of litigation after which I decided to represent myself.  How do you know that your evidence has been assigned an Exhibit number? Simple.  Apply to get the Roznama or docket of the case and each exhibit will be described there. What do you do if you find one of your evidence document not marked as an Exhibit? File an application asking the Court to do so. However, you should be very attentive during all cross-examinations and make sure that your evidence is marked as an Exhibit with a specific number whenever it is presented.  Be assured that Courts will not mark every evidence as an Exhibit simply because you have presented it. Absent an exhibit number, its evidentiary value is virtually zero and advocates in trial courts are blissfully unaware of this. WHen you go to High Court, smart advocates will tear your evidence apart asking the judge to not consider it because it has not been marked as as exhibit. They will say that it was not marked because you knew that it was fake or concocted or forged or whatever... 

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I am glad that you asked this question because it had caused a lot of stress to me during my litigation and I wondered how many others suffered from the same problem caused by inattentive or incompetent advocates.  HOPEFULLY THIS RESPONSE IS ALSO USEFUL TO THOSE WHO REPRESENT THEMSELVES OR TAKE A CLOSE INTEREST IN THEIR LITIGATION, WHICH THEY SHOULD ALWAYS DO.

 

 

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Thank you so much Samir N. I can't believe you are not a lawyer. Your reply is so perfect that it leaves no scope for any further questions. You seem to be so well versed in LAW. EXPERIENCE IS THE BEST TEACHER THEY SAY.............and you prove it right.

I have so much clarity now about what I am filing. 

Regarding the sms data that I am filing. I have typed it out and will submit that. I also have all the data on my cell phone instruments which I can produce when needed by court. But tell me one thing. I heard that cell phone providers do not preserve data more than a month old. Even if they do, they can only give recorded time of outgoing and incoming calls and msgs. The data of actual msgs are not saved by them . Then how can the service providers be of any help for authenticating the data ?

Just a query for my own understanding. I dont need any data from them. I have it all with me.

Thanks again. I might have to keep bothering you time and again with queries that pop up from my mind suddenly.

Regards

Thanks for the complements though I do not think that I deserve them as I have come across some bright advocates and there are a few good ones on this site too (For example, Advocate Kalaiselvan whose comments I find simple and logical, without inviting controversies). Yes, experience is the best teacher but broad experience and education helps to have a logical approach to any problem. Many advocates learn the rules/codes/procedures/Acts to pass exams but miss the essence behind them. To be fair to advocates, that is true for any profession. Some college dropouts, as we know, are brighter software engineers than those having a Ph.D. in computer science.

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Now coming to your query: I am not sure of the requirements that the national telecom Acts or other Acts or regulations in India (by TRAI, the telecom regulatory agency in India) impose on the mobile carriers or ISPwith respect to duration of preserving e-evidence or data. With computer storage now available so cheaply, I would be surprised if it is only for one month. You may be confused with the amount of time that carriers retain SMS in case your phone is switched of. That would be a short time, relatively, as it has to be available online, in real-time. Archiving SMS is a whole different issue. Law enforcement agencies in particular, would push to get much longer periods as it will help them in presenting evidence in their prosecution, once they get a hint of what the criminal has been up to. Historical data will help them a lot. May be, this duty to retain SMS over a long period is not covered by any regulation/Act, yet.  

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If someone presents SMS messages on their cell phones, adverse to me, to the Judge as evidence against me and if I knew that there is no way for the carrier to confirm them, I would simply deny them (I hope that I do not receive pontification from readers on the importance of been truthful)!  I would claim that it is easy to hack your own phone and sneak in SMS messages purportedly from someone for any given time. I would then bring in an expert witness to explain to the Judge how SMS messages are saved in the Mobile OS and how they could be altered or new ones inserted. I would actually have the expert demo one and show how easy it is to do so. Point is: When it comes to SMS or any e-evidence, the best way to authenticate it is to get an officer of the ISP or telecom carrier to do it for you by presenting their archived data and an official Court-issued summons forces them to do so. The content of any device that you are carrying is off-line data in your control and therefore should be easy to manipulate and hard to provide as reliable evidence, if confronted by a good advocate. 

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You articulate your legal queries clearly and they give a sense of your understanding of law. Therefore, its a pleasure to respond. I am sure that you can be a good advocate. Age is just a number these days. You can enroll for part-time LLB and get it easily and be able to practice. You will be successful and then, perhaps, your husband will apply for maintenance from you!! 

Thanks once again Samir N, for the advice. Thanks also for the compliments that I have qualities to become an advocate. Even my advocate says that I can write very clearly and fairly good and that is the reason he submits all my replies the way they are, without adding anything from his side. haa,haa ! And thats why it looks like I might lose the case ;)

Jokes apart ! Yes, I also thought of becoming a lawyer. But seeing how my case is being messed up, I feel I will just keep reading the laws and make use of the newly acquired skill by providing free guidance to those in need (Like the way you guide all of us). Necessity is the mother of invention........and thats what has taught me to express myself clearly now.

I have googled a lot about SMS msgs storage and retrieval. What I am given to understand is that telecom firms dont retain msgs at all, because youngsters these days send hundreds of msgs per day. Hence it is not possible for firms to keep so much back up data with them. They just retain the outgoing and incoming call time details for every telephone number.

Request my learned friends to please help with facts about using sms as evidence, its storage and retrieval from service providers. It will be a great help to people like me, who are relying on sms records as one of the most valid evidence for my case.

 

Regards

kavita

@samir.........your guidance is excellent...with regard to your comment regarding ' marking of documents as exhibit' i want to know, if in a DV case, if the petitioner wife, has given a copy of handwritten complaint letter (no FIR filed or any dairy entry) given to the police station, as an evidence to the court in DV case, and has not marked that as exhibit, will that evidence stand in court, considering your arguement that such an evidence has zero value as it is not marked as exhibit in court......please guide..thanks

@sandeep, DV is a very strange Act and somewhere in the Act the rules or provisions in the Act state that the Magistrate can set his own rules. Now what I have states about marking a document as an Exhibit is covered somewhere in the Indian Evidence Act and related judgements. I do not think that the DV Act gives such wide leeway to the Magistrate to set his own interpretation of the Indian Evidence Act. Therefore, my observation should survive even the draconian provisions in the DV Act.  However, at the end of the day, you have to present yourself to the Judge as a knowledgeable person and sneak in your observation that you consider some of the documents submitted as falsified ones or one which require explanation and that since they were not presented to you during your cross-examination, should not be considered.  You see, Judges often need to be enlightened or reminded of certain details. If the Judge still considers the document which have not been marked as an Exhibit, you have a good chance to argue the same in Appeal.  The key is to preserve all your arguments during appeal by taking appropriate steps in the trial court.  That said, it is often the case that the document is presented during trial and the witness cross-examined on it. Yet, the document may not get expressly marked as an Exhibit. In this case, I think that my observation may not be strictly true because ultimately in law, substance is given priority over procedure. And in the example given by me, the mere failure to mark as an Exhibit would be an inadvertent procedural mistake which did not deprive the other party of due process and therefore the unmarked document could be considered by the Judge without fear of been overturned on appeal.  Hope this helps.

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But, in DV Act, the petitioner is entitled to a lot of interim relief on prima facie evidence - That is even before you are cross-examined. That is why the DV Act is draconian and most advocates do not understand this aspect. Once you survive the initial stage where interim relief is granted on prima facie evidence, the DV case just is a nuisance and nothing more. 

thanks samir.....i got your point. in the end...substance will rule over procedures..thats correct...

hi:
in Discussion > Family Law > Divorce > Divorce - evidence for ws opposing divorce
 Actually I am looking for a re-conciliation / patch up with my husband. We are separated for more than 2 years. I am being very choosy about producing my evidence. I still have very good relations with my husband's relatives and few close family members. I don't want to produce anything that deteriorates my relations with them and becomes a reason for breaking-up, rather than patch-up.

gud to knw tht u r spl. Frm ur abv thght bt frm very nxt thread it seems u wish to continue the matter further.

Discussion > Family Law > Divorce > Lawyer seems to be fooling me
Eg. He has been pressurizing me to file 498 A on my husband and family, although he knows very well that I am seriously trying for a re-conciliation. .If I have not  even put any accusations against my husband so far, inspite of having proofs in some cases............then how can I use 498A on him ?

wht mk u away frm re-concillation ? it would be fine if u mention the cause tht refrain u frm mking re-concillation fr one to give u right advice.

Discussion > Family Law > Marriage > Wife has abandoned me and our five year old daughter
Many people will suggest the latter, but with my experience, I can say, that its a very tough decision to break your own marriage with just one signature. Do what your heart tells you to do.......and your decision will never go wrong.

“I can say, that its a very tough decision to break your own marriage with just one signature.” Completely agree with u. impress with ur thought.


Discussion > Family Law > Others > Harassment from ex-lawyer
frm the thread u hd already changed it. Gud. Appreciate ur decision.

frm various thread, it does appear tht u r practical and wish to reconcile with ur hubby

thn fail to understand wht prevents u to do so and moreover where is the question of changing the lawyer in reconciliation process ? does the presence of tht lawyer hurdle in ur process ?

wish u best of luck in ur reconciliation process.
Hope u r the person who say those thing when u  preach to urself.