• 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
Religion: Hindu

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14 Answers

1) untested evidence is no evidence . It would be rejected

2) complication of documents have to be filed separately

3) you don’t mention judgments in your affidavit

4) e-mails are acceptable in evidence under section 65B of evidence act provided conditions mentioned in said section are complied with

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Concerned

IF you have the copy of the divorce petiton filed by your wife - just check the financial claims OR the financial releif she is seeking - if that is not much - in such case you may choose not to appear in this case and let it proceed ex-parte - your wife will get an exparte divorce and she will be free to marry any one - similarly you will be free too.

In case there is a financial relief she is seeking - unless that is huge - she will have to file an execution petition for payment of such monies - IF their is no asset in India on your name you again need not to worry - the execution wont happen ---

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Answers to your queries.

a- their is no such procedure that in matrimonial law - evidence etc will be considered without the presence of the respondent - unless especially allowed by court which court rarely does.

b. you may attach anything if you want to along with affidavit - if it is accepted.

c. Ideally no evidence should be given unless personally you are not present - but yes documents / eltronic evidence can be given along with certificate under 65B of evidence act .

d. Yes it can be submitted however it is better to mention all the facts before hand

e. As said all the defenses can be present but will materialize only if personal presence is their.

Think about letting it go in direction of ex parte

Best of luck

Atulay Nehra
Advocate, Noida
1282 Answers
58 Consultations

5.0 on 5.0

You have to make application that you may be permitted to avail video conferencing facilities

2) mention that you are working abroad and not been granted leave you may be permitted to avail video conferencing facilities

3) citations have to be used during arguments

4) you have to state facts not law in your affidavit

5) you should not rely merely on media reports as to cost of living . Rely upon govt publications

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

hello

So long as the accused and/or his pleader is present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".

In the case of Mrs. Suvarna Rahul Musale vs. Rahul Prabhakar Musale Bombay HC has permitted the record of evidence by way of conference. To the same effect, is the decision of the Calcutta High Court in the case of Amitabh Bagchi vs. Ena Bagchi. another judgment is Mr. Mithun Kishore Patadia vs Mrs. Sheetal Mithun Patadia on 3 March, 2016

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

hello

an application for video conferencing can be submitted which the court would accept if you cannot come. you can state on affidavit along with relevant annexures which would be considered by the court. you have to buttress your statements arguments with the help of evidence which can only be done by giving proof in the form of papers, docs, recordings, CD etc.

yes, it is appropriate and necessary too in order to get a favorable order.

The 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. this submitted evidence would be accepted by the court, and I case of doubt, the other party must be compelled to state this on an affidavit that these emails were never generated from her mail ID.

as far as 5 is concerned, courts take notice of the fact that such studies do take place and can become a part of the record but it all depends upon the judge who will ultimately decide what would be the maintenance amount. therefore leave no stone unturned and these studies should form a part of your affidavit.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Parents assets cannot be attached in execution proceedings by wife

2) if husband has no assets in India difficult for wife to recover maintenance from husband

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. The evidence submitted by the Husband will be kept in record and the husband will be asked to to appear for examination and cross examination and till it is over, the case will stand pending. If the husband fails to appear despite repeated orders, the case might be decided ex-parte. However, the Husband can file an application for video conferrencing siting his inability to appear in person from abroad. If his aid application is rejected, he can appeal before te Higher Courts for relief and remedy.

2. Yes, the Evidence on Affidavit should contain annexures in support his statements.

3. All evidence including digital evidence should be annexed with the evidence.

4. there is a procedure to submit digital evidence. If the email account has been hacked, then those emails will not be accepted as evidence.

5. If it is for deciding maintenance/alimony then the purchasing power parity (PPP) of the aid Country shall have to be taken in to account for arriving at the ppropriate figure by the Court.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1. Even if he files evidence by an affidavit and not making himself available for cross examination, his evidence can be rejected by the petitioner/wife as false because he did not make himself present before court for proving his evidence by cross examination.

2. What do you mean by annexures or appendices?

He may enclose the documentary evidences but he has to prove his documents before court or else that will not be considered as exhibits.

3. The procedure as per provision of section 65B of Indian evidence act is to be followed for producing electronic evidence, citations/judgments need not be submitted during chief evidence i.e., by filing the affidavit .

4. Wife should not admit the evidences of emails or any other electronic evidences, then it will become the burden of the husband to follow the procedures of Indian evidence act to prove his evidence.

5. The court will not entertain irrelevant documents which do not pertain to the case as admissible evidence, the wife side can object to filing such evidences before court stating that he is trying to waste the precious time of the court by producing some unreliable and irrelevant documents which do not have any relevance to the current case.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

n 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?

The lawyer of the witness has to file a petition seeking court's permission for examining the witness through video conference for the reasons that the witness is living in abroad.

The lawyer should undertake to bear the expenses and also to observe the formalities in this regard as per law.

If the family court is dismissing the petition for the reasons that it is not feasible or no facility available for that, then an appeal before high court also may not fetch any fruitful result.

Other than this, if the reason for rejection is not appearing to be genuine, then you may prefer an appeal against the aggrieved decision.

In that case, what is the appropriate vehicle for referring to documents and citations?

The documents can be produced along with the affidavit but citations can be produced only at the time of final arguments and not during witness examination.

could you please share your thoughts on #5?

The cost of living aspect need not be emphasized by producing the newspaper publication or by producing any article published in a journal or a book or magazine.

That can be proved at the time making an argument

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

The execution petition may not be successful if the respondent is not in the country.

The petitioner has to wait for the respondent to return and settle back in the country to execute the decree.

Moreover the respondent is not having any property in India hence it will not be possible to enforce the decree by the petitioner in any manner

This will not impact immigration process in any manner at any time.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

I am dealing with a similar case for a client based in Europe.

I would like to tell you that although the Court would not for obvious reasons be able to place a charge on any immovable property of the husband’s so as to secure the payment of alimony (if any) in the case at hand, traveling to India might not exactly be a cinch.

This is because a decree of permanent alimony can be executed like a money decree. So it would be open to her to file an execution petition. In case the husband were to still remain absent, she could move an application under Order 21 Rule 41 for his committal to civil prison. I don’t think I need to tell you that traveling to India is unlikely to be a fun experience for the husband with a warrant of arrest against him.

Pulkit Chandna
Advocate, New Delhi
191 Answers
5 Consultations

4.9 on 5.0

Once execution petition will file court will order payment , failure to which arrest order.

No claim in in laws proprieties. You can demand any amount but will considered 25 % just maintenance and acc. to life style of husband as wife deserves same.

If his arrest is ordered or warrant issued, definitely his travel documents will cancelled.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. You shall have to file a separate petition seeking video conferencing and move the petition on the day of filing the evidence.

2.The require documents will be annexed with the evidence to be filed before the Court. You shall be examined and cross examines through Video conferencing. Citations will be referred by your Advocate while arguing the case.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1.Ordinarily, lawyers allow interim/initial ex-parte orders which they get vacated by filing an application in the same court or appellate court but allowing final order to be ex-parte might be considered as risky by conservative lawyers.

2. What is huge or acceptable shall have to be judged by you. Normally 1/3rd to 1/4th of net monthly earning of husband is considered as monthly alimony/maintenance to be paid the wife and accordingly one time settlement amount is arrived at.

3. The assets of husband can not be claimed by the estranged wife. However, if payment as per Court order is not made, arrest warrant might be issued and in he worst case the passport of the Husband might be impounded. This is the reason why tye conservative lawyers will not accept the idea of allowing final x-parte order in the case.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

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