Evidentiary procedure under HMA Section 13
Wife W has filed a divorce petition against husband H, on the grounds of cruelty and desertion.
Husband H resides abroad and can not practically or financially manage to leave work and fly to India for the court proceedings, including evidence, cross-examination etc. The particular family court has repeatedly ruled against videoconferencing in all kinds of divorce cases (no ruling in this particular case yet, because no motion filed for videoconferencing; if one were filed, it would likely be rejected).
In this case, I have 5 questions about evidence:
1. If when it comes to his evidence, the defendant H were to file an affidavit, but not appear in court for cross-examination by petitioner, what would be the consequence of that? Would his affidavit be considered as evidence presented by him, or would it be rejected outright?
2. Is it appropriate/acceptable to attach annexures or appendices to the defendant H's affidavit?
3. Is it appropriate/acceptable to include references to electronic evicence (such as links to media reports) or citations in the defendant H's affidavit?
4. With his WS, the defendant H submitted copies of emails and other electronic communications between W and the parents of H, as evidence contradicting some of W's claims. However, since then the email accounts of parents of H were hacked and those emails are gone. Would this submitted evidence be accepted by court, if during cross-examination by H/lawyer, W admits that these messages are real and correct?
5. H intends to make a "cost of living" argument. Towards this end, he has gathered electronic evidence comparing cost of living of the cities in question. (a study from a major international newspaper...the study was subsequently quoted in online stories by multiple reputed media outlets abroad, and also by Times of India. Would links and printouts of those links suffice as evidence towards this argument (irrespective of what the court rules on the argument itself)? Or will only a publication of the Govt. of India suffice?
Asked 4 years ago in Family Law
Dear Adv, Sethi,
Thank you for the quick response.
Re #1 In that case, it becomes essential to request videoconferencing. What's the process for requesting that? Is this to be requested in the affidavit itself or does a separate motion needs to be filed? In either case, what argument should be made to increase the chances of success either in the family court itself, or if the family court rejects the request, then in the High Court appeal?
Re #3 In that case, what is the appropriate vehicle for referring to documents and citations?
Also, could you please share your thoughts on #5?
Asked 4 years ago
Dear Adv. Nehra,
Very interesting idea about allowing ex-parte decision and letting W file execution petition.
From this perspective, what amount would you consider "huge"? i.e. amount above which this method won't work?
H has no assets in India, but his parents do. Also, if the execution petition is granted, then would non-compliance have any negative impact on immigration, etc?
Asked 4 years ago