• Forfeiting cross-examination of wife

Background of the Cases:
My wife had filed a Domestic Violence Case in District Court and a Restitution/Maintenance case in Family Court in 2015. In 2017, we had filed Mutual Consent Divorce case (unconditional without alimony) but after six months,on last day, she withdrew the MCD petition. Currently, I have to pay Rs. 12,000 monthly maintenance.

My question :
--Wife is continuously absent for Cross Exam in DV case, though she had given Evidence Affidavit in Nov 2016. Court had warned her to be present around 5 months back but due to reasons like exams, illness, she is remaining absent for past 4-5 dates.
My advocate is planning to submit application to forfeit her cross and close her evidence without cross. What would be consequences of it? Will it be beneficial?
Or should I wait for her and take her cross? What will be better to expose her lies?

--In Family Court,
As wife has got details of my changed job, during her evidence stage, she requested court to summon my new employer. Court has summoned my employer on next date. In MCD application affidavit, wife had mentioned to forgo any right on past or future maintenance. but as she knew I changed job, she withdrew MCD and now has my income details.
I will show expenses if she files revision of maintenance petition. But, case is getting too prolonged due to this, as court might now revise maintenance, I may appeal against it and so on. Wife has Master degree but not doing any job. How should I handle this case? How can I stop court from revising the maintenance?
Asked 4 years ago in Family Law
Religion: Hindu

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20 Answers

1) it would be beneficial if court grants application filed by your lawyer

2) untested evidence is no evidence

3) if your income has increased your maintenance would increase . if you have dependent parents court considers said fact while determining maintenance

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Hello sir, if witness evades from the cross examination the court can draw a adverse inference and presumption under section 114 of Evidence act..The credibility of the witness cannot be relied upon and cast a dent over his testimony before the court

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Sir,

If on the next date your wife is not appearing in court for her cross-examination then you should ask your Advocate to get an order of no cross against your wife subject to heavy cost for wasting the precious time of the judiciary and the court and yourself. After filing of DV it is her moral duty to remain present before the Hon'ble Court for cross-examination.

There are judgements of Bombay High Court which you can reproduce if the court revises your maintenance amount.

Garima Anil Mehrotra
Advocate, Mumbai
514 Answers
1 Consultation

4.9 on 5.0

Dear,

If your salary is hiked after joining new job and court thinks that it is good to raise maintenance also, you

are giving to your wife, then court orders for hike in maintenance also. But if you show dependency of

your parents on you and present various bills of expenses in court than might be court not raise maintenance.

Your advocate is giving right suggestion to you, go with advocate decision, it will beneficial for you in this

particular case.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

With regard to the forfeiture of her cross examination, I would say may harm you as if there is nothing in her chief by which you can prove your case.

As it is the art of cross examination where we can break the witness as per our own requirement by way of confusing questions and that is the reason she is been doing that.

Sir, she has been acting very smartly as she knows and wants to increase the maintenance amount, but you also please don’t let it happened by showing your extra expenses somehow.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Dear Client,

Willful abstaining and delaying case proceeding, will go against her, better insist to close the evidence and proceed for defense evidence.

And educated wife sitting idle at home not entitle to maintenance.

Professionally-Qualified, Capable Of Sustaining Self Spouse Not Entitled To Interim Maintenance: Delhi HC [Read Judgment]...

Read more at: http://www.livelaw.in/professionally-qualified-capable-sustaining-self-spouse-not-entitled-interim-maintenance-delhi-hc/

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Yes, file a petition for closing her evidence due to her continued seeking of adjournment. Once you file such petition the court would be forced to put pressure upon her to complete evidence.

2. Unless your prove her employment mere qualification of your wife is not enough to avoid maintenance.

3. If your increased income is proved then stopping the court form enhancing maintenance is very difficult unless you show greater medical expenses.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. Cross examining your wife on her affidavit of evidence is very vital.

2. You have the opportunity to impeach her credibility in the cross examination and prove her statement in her affidavit of evidence as incorrect or false.

3. Why on earth someone would file an application to forego this valuable right? I am just not able to understand

4. Please make an application to the court for a direction to your wife to remain present for cross examination on the court given next date without fail and also pray for grant of costs to you.

5. Please do not forego your right to cross examine your wife under any circumstances! Yes filing an application by your lawyer to stop your wife from filing her affidavit in evidence was understood! But closing her evidence without crossing her is a big mistake.

6. Your wife cannot say that since she does not have a job at the moment she is entitled to maintenance. If that were so then every educated lady would leave her job and apply to the court that since she is jobless she needs to be awarded maintenance. Let her file any application for revision of maintenance. You can always reply to the same by saying that earlier she herself filed an application to waive her right for any past or future maintenance and moment she learnt that you landed a new job, she became greedy and withdrew her application. Say that on account of this, the court ought to draw adverse inference against her and her motives and her application should be dismissed.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

My advocate is planning to submit application to forfeit her cross and close her evidence without cross. What would be consequences of it? Will it be beneficial?

Or should I wait for her and take her cross? What will be better to expose her lies?

Ans: Even if such order is made later it will be remanded back by the Hon’ble High Court with a direction to give an opportunity to the wife. Let your advocate request the court to adjourn by imposing heavy cost.

--In Family Court,

As wife has got details of my changed job, during her evidence stage, she requested court to summon my new employer.

Ans: Court has other business to do, normally it reject such application, if allowed then approach the High Court and get it cancelled.

I will show expenses if she files revision of maintenance petition. But, case is getting too prolonged due to this, as court might now revise maintenance, I may appeal against it and so on. Wife has Master degree but not doing any job. How should I handle this case? How can I stop court from revising the maintenance?

Ans: Better ask your employer not to produce any document relating to your salary and ask him to not appear before the court. Never disclose your actual income after wards your efforts to show your expenses may not be considered by the Court. Nothing will happen if the employer not ready to appear before the Cosurt.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Hi,

The closing the chances of cross examination will be surely beneficial for you. You are suggested to strongly counter all the allegations by her and prove that highly qualified wife is not entitled for maintenance.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Yes it will be beneficial as your wife on complainant herself cannot evade cross examination waste courts time so pray before court to close her right and impose a cost on her for wasting your and courts time.

No its better if her right is closed value of her evidence diminish if not present for cross.

First of fall show expenses dependent parents, loan, there medical expenses. etc.

SECONDLY qualified wife sitting idle is not every time entitled to maintenance. (Judgement of Mamta jaiswal)

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If the witness fails to co-operate with the courts, then, technically, the witness can also be booked under Chapter XI of the Indian Penal Code for impeding public justice.

Therefore, it is an obligation on the witness to cooperate with the courts and the police.

If she is failing to turn up before court for cross examination in the next hearing you may file a petition seeking dismissal of the case for the reason that since she has filed false case hence knowing about the consequences of the same, she is not appearing before court for cross examination, hence the court may close her evidence and dismiss the case as she is not interested in prosecuting the case any further.

She can file for enhancement of maintenance amount on the basis of change in the situation provided the previous application has been allowed and an order granting maintenance has been passed.

You have to fight out the menace by providing the details of statutory deductions and also other liabilities to be met out of your salary income and provide a depleted take home salary.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

1. If she refuses to attend the Court then how can you cross examine her and expose her lies? in the instant case, you shall have no option other than closing her examination and forfeiting her cross.

2. You should have challenged the order for maintenance on the ground that she is highly qualified to maintain herself and there is an order passed by Justice Dhingra of Delhi High court stating that highly qualified wives should not avail maintenance from their husbands and act like parasites.

3. In case the maintenance amount is revised, you should challenge the same immediately before the appellate court.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

if she does not appear before the Hon'ble Court for her examination then the cases can be dismissed.

closing the evidence without cross-examination will not be the good option for you.

Feel Free to call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

You must disclose your income detailsin affidavit

2) you can file fresh petition for divorce on grounds of mental cruelty

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Since you income has been established in court the only way to stall the enhancement of maintenance of your wife is to show larger expenses. So render evidence on that aspect.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

In actual MCD can be withdrew bilateral, You can file contempt against her.

Income details can be given only if needed than in statement submitted before court via affidavit.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

During your evidence, you dont give any details of your income, it was her burden to prove your income and not yours

Your restrict yourself to deny her allegations alone and other details of mental cruelty

Withdrawing her consent at the last moment in the MCD proceedings is also a form of mental cruelty.

.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

1. You should not miss any opportunity to place documents which you think might go in your favour though the said MCD petition signed by her which she had withdrawn later on is not expected to have any impact on your present case.

2. So, in addition to submitting the fact that she is highly qualified to earn her livelihood, you can also produce copy of the said MCD which she had signed accepting no maintenance from you.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

Yes a income and expenditure affidavit along with the supporting documents can be given before court further you can contend before court using MCD that your wife has been harassing you using different techniques and the law.

Further the contents of MCD affidavit can be brought on record anything agree by wife can be brought to notice of court. Further you can file a fresh divorce on ground of cruelty.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

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