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Writ petetion

Respected Gurus,

I would like to file a writ petetion againist the family court judge , under atricle 226 , I have just prepared a draft copy ,

please share your thoughts on this , your valuable thoughts and suggestions are highly appreciated.

WRIT OF CERTIORARI PEITION.

It is respectfully submitted that the Petitioner unable to tolerate any further the Respondent’s unabated cruelties followed by desertion, after the solemnization of marriage between the parties, against the Petitioner, on various occasions, which had necessitated the Petitioner to file a Petition u/s 13(1)(ia) (ib) of the Hindu Marriage Act for the grant of divorce on the 15-10-2011 before the Hon’ble Family Court Cum District & Sessions Judge at Visakhapatnam in FCOP 1304/2011.

It is submitted that the learned Family Court Cum District & Sessions Judge without observing the prescribed procedure in disposing off the said case, had passed an order in the said case on the 10th April 2015 dismissing the Petition filed by the Petitioner, by which the said order had become impugned and in the said impugned order, the learned Judge had miserably failed to adhere to the stipulated/prescribed procedure in disposing off the case and had acted in contravention of the principles of natural justice by not applying the judicial mind while adjudicating the case.

It is respectfully submitted that after the Petitioner had filed the Petition for Divorce during the year 2011 in OP 1304/2011. In this respect, it is submitted that the Respondent only with an intention to further harass the Petitioner, had filed the Petition U/s 9 of Hindu Marriage Act for Restitution of Conjugal Rights in OP 160/2012 before the Hon’ble Judge Family Court Cum V Additional District Judge at Visakhapatnam during the year 2012, by deliberately suppressing all the facts contained in the Petition filed by the Petitioner in FCOP 1304/2011. Therefore, the Hon’ble Judge Family Court Cum V Additional District Judge at Visakhapatnam in his final order which was set exparte against the Petitioner had contended that there being no adverse evidence on record to disbelieve the case hence in result the Petition has been allowed.

It is submitted that the learned Judge Family Court Cum District & Sessions Judge Visakhapatnam in FCOP 1304/2011, even though the required information and knowledge about the Respondent filing the Petition for conjugal rights was available, the said learned judge has failed to take effective steps by making appropriate statements in his final order.

It is submitted that the learned Family Court Cum V Hon’ble Judge Family Court Cum V Additional District Judge at Visakhapatnam had set the appellant exparte and had passed an ex parte order in this matter, without having any proper information and knowledge regarding the status of the Petition filed by the Petitioner in the Court of Hon’ble Family Court Cum V Additional District & Sessions Judge for the grant of divorce. It is submitted that in the light of the deliberate suppression of crucial facts by the Respondent regarding the matters contained in FCOP 1304/2011, by which the Learned Family Court Cum V Additional District Judge Visakhapatnam has granted the order on the Petition for conjugal rights in favor of the Respondent in absolute haste without proper application of judicial mind, before the disposal of the Divorce Petition. It is submitted that the reasons adduced by the learned Family Court Cum V Additional District Judge Visakhapatnam for the disposal of the Petition on restitution of conjugal rights is neither maintainable nor legal mainly in view of that the facts which was deliberately suppressed by the Respondent.

It can be inferred that the date of filing the Petition for dissolution of marriage by the Petitioner has been well before the date of filing the Petition for Conjugal rights filed by the Respondent. Therefore, it is submitted that the Respondent had filed the Petition for Restitution for Conjugal rights not with a sincere object of executing the order and recommencing matrimonial society with the Petitioner, but only with an intention to tease and harass the Petitioner. In actual terms the learned judge was not been able to bring forth these crucial facts, which clearly means and signifies that the learned judge has made and finalized the judgment on FCOP No 1304/2011 against the Petitioner based only upon some preconceived and misconceived notions made by the Respondent and had absolutely disregarded all the contentions made by the Petitioner, thus making the said judgment in FCOP 1304/2011 lopsided and imbalanced and in contravention of the principles of natural justice.

It is submitted that the learned Family Court judge Cum V Additional District & Sessions Judge in FCOP 1304/2011 had finalized the judgment based only upon the Respondent’s counter and has willfully failed to taken in to consideration the contents of the cross examination of the Respondent and other crucial documents filed by the Petitioner ie the Respondent’s photograph in Norway and also the employment proof of Respondent in Norway. It is submitted that the learned judge had taken the matter only from the counter filed by the Respondent and had willfully ignored all other records and documents which is really unethical, unjustified and clearly opposed to the Principles of interest of justice.

It is observed that the learned judge has absolutely failed to adhere to any prescribed procedure/judicial principles to adjudicate the case. Further the owing to the deliberate suppression of facts by the Respondent, the learned judge has failed to ascertain the sincerity of the Respondent in executing the Restitution of Conjugal rights order, thereby the learned judge has failed to study the case in depth and also failed to find out whether the Respondent was sincere in her prayer and as the Respondent was not sincere, the order passed by the learned judge for the restitution of conjugal rights was deliberately not executable and thus the Respondent has deliberately disobeyed the order passed by the learned judge which was explicitly permitted by the learned judge, which is clearly opposed to the Principles of natural justice and in violation of the established judicial procedures.

It is submitted that as per the settled principle of law, order on conjugal rights is required to be executed within a period of one year from the date of passing the order else such an inaction shall give rise to a valid and maintainable ground for divorce. In the instant case the Respondent obtained the ex parte decree and thereafter had proceeded to Norway and in the physical absence of the Respondent from India the question of executing the order passed by the learned judge on Restitution of conjugal rights has been willfully defeated by the Respondent, resulting in no cohabitation between the parties during the period of one year period from the date of passing the order which rightfully gives rise to valid ground for dissolution of marriage.

It is submitted that the learned judge had deliberately failed to ascertain the true intention of the Respondent and her sincere object of the Respondent to execute the order of conjugal rights. It is submitted that the exact whereabouts of the Respondent was neither furnished by the Respondent nor was taken by the learned judge, resulting in the absolute defeat of the purpose of the order and the provisions of law. It is submitted that the Petitioner in all sincerity and on his own volition had filed before the court all the where about of the Respondent and had also filed the employment proof of the Respondent in Norway including her photo graphs in Norway and that such documents was even admitted by the Respondent in her cross examination, despite filing these important and clinching evidences, the learned judge has deliberately ignored the cross examination of the Respondent and that the learned judge had after the said documents being duly marked had willfully failed to take in to consideration such crucial evidences submitted by the Petitioner in support of his contention like photographs vide document No (A5 to A7) and also Respondent’s employment proof in Norway, while finalizing the judgment, which is a testimonial evidence that the learned judge has deliberately departed from the judicial principles, which was against the interest of the Petitioner and opposed to the interests of justice. It is submitted that the Respondent after obtaining the decree of conjugal rights , had left for Norway without executing the order and also that the Respondent by leaving behind the child in India which clearly speaks volumes regarding the character and attitude of Respondent towards the Petitioner. It is submitted that the Respondent had left for Norway without informing the Petitioner and without the consent of the Petitioner which the Respondent has also admitted in the cross examination that she did not file any evidences to prove that she informed the Petitioner and that the Respondent had left for Norway with the consent of Petitioner.

The learned judge completely ignored the respondent the contents of the cross examination which was very important to ascertain the true intention of the Respondent towards marital life, she being a software engineer and that both her parents are employees of the court and also her uncle has been working in the same court, they are aware of the settled principles of law more than the Petitioner, after she obtained the restitution of conjugal right, she is required to execute the decree, instead she left for Norway, but when she filed the evidence affidavit she had mentioned Bangalore address instead of Norway address, which is a deliberate attempt on the part of the Respondent to mislead and misguide the court by concealing her actual whereabouts, but in the cross examination she was not able to conceal the said fact. It is submitted that the learned judge never considered the contents of the cross examination and also the crucial documents like the employment details and photographs of the Respondent, which was furnished by the Petitioner to facilitate the adjudication of the case in the interest of justice, but while finalizing the judgment, even after the marking of documents filed, the crucial facts even after its admission by the Respondent in the cross examination was conspicuous by its absence in the judgment, which means and signifies that the learned judge has clearly violated the prescribed procedure and has acted in contravention of the principles of natural justice.
It is submitted that the Respondent had filed many emails as evidences but at the same time she never filed a single email to showcase that Respondent informed Petitioner about her whereabouts in Norway after obtaining the conjugal rights decree, which is truly misleading and unethical and abuse of the process of law and also an error apparent on the face of record committed by the learned judge in this matter, which has truly aggrieved the Petitioner.

It is submitted that in the Respondent’s evidence affidavit the Respondent had always contended that the Respondent was prepared to join the matrimonial society of the Petitioner him, but in reality the Respondent has left for Norway thus defeating the purpose of the order decreed for restitution for conjugal rights, which clearly evidences the actual mischievous intent of the Respondent against the Petitioner. It is submitted that the learned judge had stated in para 20 of the order that the Respondent was transferred from Bangalore to Hyderabad and the contents of the order had contained certain starling and baseless allegations leaving the authenticity of such statements made in the said order to the figment of imagination. In this matter the learned judge had clearly committed an error apparent in the face of record, which ultimately is in violation of the prescribed judicial procedure for the adjudication of cases and is in contravention of the Principles of natural justice, which has severely aggrieved the Petitioner.

It is submitted that the Respondent never filed any proof during the cross examination evidencing the proof of actions of any of such contradictory statements made by the Respondent. It is submitted that Para 4 of the Respondent’s evidence affidavit dwells about her various trails of joining with the Petitioner, but the learned judge has stated that the Respondent was transferred from Bangalore to Hyderabad in the para 15 of the impugned order and the Petitioner never provided GAS stove and cylinder and that the Petitioner only want to change the mobile number, the learned judge never at any time applied his judicial mind and after a bare reading of the judgment it is indeed clear and unambiguous that the contents of the order is bereft of actual facts, thus making it unambiguous whether the Respondent had actually had come to Bangalore or Hyderabad or vice versa to join the Petitioner. It is submitted that when the Respondent was not sure in the cross examination about the said fact, it is absolutely improper on the part of the learned judge to confirm such statement. It is submitted that the learned judge has on his own accord had confirmed certain statement which the Respondent was neither clear nor has confirmed such facts. It is submitted that the Respondent stated in the evidence affidavit that she came to Bangalore to join the Petitioner but did not file any evidence to prove this point. Further the Respondent admitted the said fact in her cross examination that she cannot prove her trails through any evidence, the learned judge has in the order has stated that the Respondent was transferred to Hyderabad to join the petitioner, which is incorrect as per the records and also that the learned judge had made some alterations/additions in the final order which are not found in the pleadings/ records.

The learned judge has made the entire order only based upon the Respondent’s counter, thus the learned judge had completely ignored the averments and admissions made in the cross examination by the Respondent, for reasons best known only to the learned judge. The learned judge has admitted and confirmed certain facts which even the Respondent herself was not sure in the cross examination, for instance Respondent admitted in the cross examination that no document is filed for evidencing the fact that resistance applied by PW1 when she made efforts to join the Petitioner even then the learned judge has stated in Para 20 of the order that the Respondent was always willing to join the Petitioner, in case the Respondent was not sure about her pleadings, it is most improper and opposed to judicial principles to confirm any fact in the order, by making such statements in the final order the learned judge has committed a grave error and such an error has been in contravention of the established principles of natural justice. It is submitted that the Respondent has admitted in the cross examination that she never mentioned the harassment of the Petitioner by his parents, but the learned judge has named the Petitioner as the blackmailer which is most unethical, such statements made in the order by the learned judge are absolutely irresponsible and unethical and against the principles of natural justice.

The learned judge has stated some statements in the impugned order simply from the counter of the respondent and thus had confirmed the same without any evidence for instance the Respondent has stated in her counter that the Petitioner and his father forced the respondent to sell the house which was purchased by Respondent. The learned judge had thus leveled an allegation against the Petitioner, even though such a charge/allegation was not made by the Respondent anywhere during the pendency of the case, thus making it impossible for the petitioner to furnish any evidence to disprove the said allegation/charge leveled against the Petitioner, by this statement in the final order the learned judge has clearly departed from the prescribed procedure for adjudicating the cases, by which the learned judge had acted in clear contravention of the principles of natural justice.

It is submitted that the Petitioner was not provided proper opportunity to furnish his evidence to disprove the allegations made against the Petitioner, which is absolutely illegal and unethical, which is in clear violation of the stipulated/prescribed procedure for adjudicating cases. It is further submitted that the learned judge on his own accord, had introduced some new context in the order, as the learned judge had stated that the i.e the Petitioner is dependent on the income of the Respondent, such statement was never made by the Respondent nor by the Petitioner in any of the evidences like counter or cross examination or even in evidence affidavit and such extraneous statements made by the learned judge in the impugned order is absolutely illegal and against the principles of natural justice.

It is submitted that the learned judge in the 15th para of the order has stated that the petitioner might have filed the petition only to black mail the Respondent and to grab the money and property from the Respondent, when such a point has not at all been made by the Respondent anytime during the pendency of the Petition, it is grossly improper on the part of the learned the judge to have stated such points which are absolutely extraneous and absolutely inconsistent with the context of the case. Therefore such averments stated in the order by the learned judge is opposed to the Principles of natural justice, which has truly aggrieved the Petitioner.

It is submitted that the learned judge in 16th 19th 20th paragraphs of the said impugned order, the learned judge had made certain false statement, false allegations, some new contexts which were nowhere present or otherwise submitted/furnished by the Respondents either in the evidence affidavit or in the counter or any of the cross examination of neither the Petitioner nor the cross examination, which is absolutely opposed to judicial principles and against the interest of justice.

It is submitted that the Respondent had deliberately misrepresented crucial facts, “when the appellant invited the respondent to lead a happy marital life through a notice on 13-6-2011, she had given a reply notice appreciating the applicant’s care and concern over the baby”, but in the counter para no 12 , Respondent has stated that the Petitioner insisted the respondent to join him alone stating that the baby would require a full time attention and assured the Respondent that sooner they would take care of the baby, but in the cross examination she had made a different version, stating that “ the appellant not allowed neither the Respondent nor his daughter to join with him” such statements are incoherent and misleading and opposed to facts and thus defeat the purpose of law and justice, which the learned judge has miserably failed to observe and provide the proper justice to the Petitioner, by which the learned judge had deliberately violated the stipulated procedure for adjudicating cases.

It is submitted that the learned judge has stated certain false statements like the Petitioner did not purchase any dress to his daughter(para 15 of the order ) this point was not raised anywhere either in the Respondent's counter or evidence affidavit , even in cross examination of the petitioner, the petitioner admitted that he had sent some gifts to his daughter, but the learned judge had stated in his impugned order with some imaginary words without the back up of any proper evidence. As per the petitioner’s cross examination the Petitioner had sent some gifts to his daughter, the gifts may be anything, it may be doll or dress or anything, but if there is no complaint from the Respondent, it is indeed perplexing as to why the learned judge has singularly blamed the Petitioner with such irresponsible and senseless observations, which is against judicial principles and opposed to principles of natural justice.

It is submitted that in the cross examination the Respondent admits that “she prepared the visa for her daughter”, which means without the consent of the Petitioner the Respondent attempted to take the child away from the Petitioner which evidences the mean attitude of the Respondent. Respondent also admits that she never issued any legal notice when she left for Norway. The Respondent being intelligent had obtained the decree for restitution of conjugal rights in her favor only with an object to harass the Petitioner, but the Respondent kept daughter in her parents’ house at Visakhapatnam and that the Respondent has been independent and the photographs filed suggests that the Respondent is having nice time in Norway at the cost and harassment of the Petitioner, her husband by keeping the daughter away from him, which tantamount to utter cruelty on the part of the Respondent against the Petitioner.

It is submitted that in view of the aforementioned averments which are absolutely true exposition of facts, the learned Family Court judge Cum V Additional District & Sessions Judge had earlier initiated his judgment in FCOP 1304/2011 with a misconceived note and in order to support this ill conceived note the said learned judge had further continued this misconception till its conclusion wherein the said learned judge had made all ill conceived notions and illusions with irrelevant facts coupled with false allegations, by which the learned judge has clearly departed from the settled principles and have deliberately violated the prescribed procedure for adjudicating cases, only with a view to benefit the Respondent which has further increased the estrangement between the parties and all these unethical and illegal actions have been carried out by the learned judge only with an ulterior motive.

Therefore, in view of the averments herein, it is submitted that the learned judge has in the impugned order have made certain false and baseless allegations, with factual inaccuracies, therefore this judgment is completely against principles of natural justice and such order has been absolutely illegal unethical and against the settled principles of law. Hence the Petitioner herein ardently pray this Hon’ble Court through this Petition:

To call all the records from the said court for a proper thorough review of the entire case and may be pleased to direct the correction of the discrepancies found the prescribed procedure while adjudicating this case, to resurrect justice and principles of natural justice.