Is supplementary affidavit only for *new* evidence/facts
My brother had a short marriage of 35 days. He is now yet another victim of abuse of 498a, 406, 125...and we don't know what else they are going to throw at him.
He is paying Rs 10,000 as maintenance and the woman is now asking for Rs 1 lakh per month. The case is now at a stage where they have cross-examined my brother and asking him to file affidavit. He has some points that he did not mention in his written reply, but wants to bring them to court's notice now.
These are not new facts. His written reply was lousy and limited to just denying the points in the Petition. He wants to now cite the way his wife abandoned him and how she threatened him while she was married to him and that he now has an extraction/extortion case filed against her.
In his CrPC 125 case, can this be done through supplementary affidavit even though he has just been cross-examined? Or through another means? Judge is in a hurry to wrap up the case and pass order. We want him to look at this background before he arrives at a conclusion.
Asked 12 months ago in Family Law from Canada
1) in your reply filed you have to state your defence to the complaint filed by your wife in detail
2) in your affidavit in evidence you cannot now seek to improve upon your case
3) you cannot go beyond your reply
4) court will not permit you to do so
5) if certain new facts had come to your knowledge after filing reply court would have permitted you to lead fresh evidence
Pleadings are important in case. Once a stand is took against the aligation then we can't change the steps. If we need to change or add then we must do necessary amendment in our written statement . Now the present situation you can add the things in your affidavit but accepting such thing is depends upon the view of court and the varsity of adding things.
Other option is, you have to add such things when cross question is asking to you by the petitioner counsel.
Restricting the reply to denial of allegations by the opposite party does not make it lousy unless you are making a counter claim. What seems lousy to a layman may make all the sense to a trained legal mind. Be that as it may, a supplementary affidavit can be filed only with the permission of the court to relay facts which could not be relayed in the original affidavit.
1. Had evidence been not started he could have applied for amendment of his written reply which is permissible.
2. Now it is too late and the same can not be done by way of supplementary affidaivt at this stage.
3. Now he will have to run the risk of faulty drafting.
4. Only during cross examination if find opportunity he can reply adding those points. Else there is no other way out.
You should file written statement after completion of cross examination, husband has right to do so under section 245 crpc. It may be new facts or explanation of old fact, it must be related with the case and necessary to give complete justice.
If your brother has not pleaded in the objections or written statement filed by him then merely filing additional evidence in the form of an affidavit will not suffice, therefore file an application to carry out amendment to the written statement and thereafter file the affidavit, this will help your cause.
1. Supplementary Affidavit amending/correcting/curing statements made in earlier affidavit in opposition, after the cross examination stage is over, will not be entertained by the Court,
2. It is not generally allowed since it will enable the accused to change his defense after comomg to know about the complainants stands,
3. However, file it to try your luck being prepared for its rejection.
If your brother has examined himself in chief and is being cross examined, there are very little chances for filing additional proof affidavit by reopening his side witness. It will be rejected on the grounds of objection raised by the opponent that he is trying to fill up the lacuna pointed out during cross examination despite the act that it is not so.
Let him consult is lawyer and file an application to reopen to adduce additional evidence.