• Evidence procedure - Defective Affidavit

My wife filed a HMA 13B against me, and later followed it up with a CrPC 125.

I live abroad, so going to the court to present myself again and again is troublesome for several reasons - super expensive for my low salary, hard to get multiple days off work at short notice of 1 month, and visa issues that don't allow frequent travel to India.

Wife's side of evidence in 13B has completed. For my side, I went to submit affidavit on the hearing date. But that day court was closed as someone had died. We got a date for next day. Next day, the Judge was on vacation (had gone on 2 week holiday a couple of days ago...so was on holiday even on the actual hearing date). We submitted the affidavit in his Court, in the presence of opposing counsel.

My lawyer says that the judge can or will reject the affidavit as defective because he was not present at the time of submission of affidavit. IS THIS POSSIBLE? If so, under what statute, regulation, or procedure could he reject the affidavit as defective? ON WHAT GROUNDS could opposing counsel ask the judge to reject the affidavit as defective? Also, what is a defective affidavit - where can I find the definition? A simple Google search hasn't helped.
Asked 4 years ago in Family Law
Religion: Hindu

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11 Answers

Yes the court can reject same as it has to be brought on record before the judge. If court is not there then affidavit cannot be recorded. 

See to exhibit any document in the court the order of court is required so without court recording same it is not valid.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

See if the affidavit was submitted in court wherein the charge of vacant court was there while the court was on vacation it cannot be rejected. 

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

if affidavit has been duly attested before registry or notarised affidavit would not be rejected 

 

2) it is not a defective affidavit 

Ajay Sethi
Advocate, Mumbai
94522 Answers
7485 Consultations

5.0 on 5.0

if you want save your self then change this advocate. He is either absolutely novice being ignorant about the basic tenants of law or is willfully misdirecting you for the reasons best known to him.

2. In other words there is absolutely no scope for the court to reject your affidavit and so avoid further damage caused to your case engage an advocate who knows the law.

Good luck.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

I don't think he will reject the same as defective even after it's defective it can be asked to be rectified. 

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

Hi

There is no concept called "Defective Affidavit".

You might have served copy on opposite Advocate ?

When the procedure is complied as to signatures etc., the Affidavit will be taken on record.

If any discrepancy is found, the court's scrutiny officer will return the same for complying any objections, as such, you check with the concerned section.

Further, What is the Defect - clarify.  More particularly, when your advocate is there the question of such issue does not arise (if any).

However, in Sec.13B cases, both the parties will submit their application at once by affixing their respective signatures. No independent submissions (please check this aspect with your lawyer)

Good Luck 

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

No court can't reject affidavit if you have submitted in the court. Now you can remind to court last month date you have submitted the affidavit get the proper reason and how your lawyer handle the situation in the court.

 

Better you give POA to your parents and run the cases on behalf of you without lawyer. Plus ask court permission for video and Skype calling so your time will be saved.

Ganesh Kadam
Advocate, Pune
12910 Answers
253 Consultations

4.9 on 5.0

NO, link court has power to accept affidavit when main court is close. And what the need to appear in court in such cases, Appointed advocate will represent you. Or execute POA in any family member name, he/she will appear on your behalf. 

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

Dear 

There is no defective affidavit if it is submitted in court along with the cross of opposite counsel then it must be submitted with the order of judge Incharge of the court during the vacation of judge hearing your case.

No need to worry for rejection of affidavit

 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

In section 13B ther is no such thing that you and she will file affidavit on different dates, is it not a mutual consent divorce?

 

You have mistaken the fact and giving incorrect information.

n fact the affidavit submitted before court is final and the judge has no reason to reject the defective affidavit, he may pass a judgment finally based on the defective evidence you submitted which may be against you.

It is not understood that why your lawyer is misguiding you, better think of changing the lawyer if this one do not cooperate properly or not guiding you in a right manner.

 

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

There is no such thing called rejection.

If the judge of other court has accepted your affidavit for evidence then it will go through and the opposite lawyer has to cross examine you on that basis alone.

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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