Hello All, In continuation to my earlier query. https://www.kaanoon.com/52650/will-498a-acquittal-appeal-affect-judgement-of-divorce-petition Please find below the extract of the Judgement where I was not entitled to the decree of divorce. "(P.W.I) Vivek (Exh.20) stated that due to false complaint filed by wife under section 498 A, 323,406,504,r/w 34 of I.P.C he suffered tremendous mental cruelty. Vivek had amended his pleadings in para no.38 as 38A contending that he and his parents have been acquitted by the JMFC Court in the case under section 498A,406, r/w 34 of I.P.C Because of the said case he suffered mental torture from the wife. He has produced certified copy of said judgement in RCC No 184/2013 below Exh. 40/1 dated 19.1.2015. However, in cross examination he admitted that the wife has field appeal against said acquittal in which he appeared. Therefore, as the said judgement is not final and the matter has been subjudiced before appellate Court, it cannot be said that due to his acquittal in said case he suffered mental torture. In view of the above discussion said judgement is not helpful to him. Hence, his testimony does not inspire confidence of the Court." In her Cross Examination she has mentioned "In fact I was not willing to file complaint under section 498A of IPC against my husband and in-laws but upon advise of lawyer I did so. I also did not read my police complaint as it was in Marathi language. I have no complaint of dowry against my husband," 1) Doesn't her testimony in the cross- examination prove to a large extent that the 498A Acquittal was just? 2) The judgement was passed on 30-Jan-16, but I was given the true copy only on 3rd March - How much time do I have to file the appeal? 3) In the appeal can I add in additional witness or will it be based on my initial petition? 4) Is there anyway to appeal in fast track at High Court as my case is from Aug 2012 and have been living separate since then? 5) Can I file another petition based on desertion based on point#4? 6) I had child access for my 6 year old daughter on every Saturday based on the interim agreement with counselor, but since this judgement I am not able to meet her, but I still regularly pay the child support. Where do I now file for partial custody? Thanks in advance.
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1)her testimony proves that flase case of 498A has been filed
2) you have period of 90 days to file appeal from date of receipt of judgment copy
3) you have to wait your turn for your appeal to be heard and disposed of finally
4) if you dont file any appeal you can file fresh petition for divorce on grounds of desertion
5) you have to make application for child custody in court within whose jurisdiction child is presently residing
1. Her testimony only proves that she was reluctant to file 498A but then accepted the advise of her lawyer to file it. It does not prove that the complaint was false.
2. You have 90 days to file the appeal.
3. Additional witnesses can be examined only with the permission of court subject to the provisions of law in this regard.
4. There are lakhs of cases pending in the HC. To fast track one case means slow tracking thousands of other cases. So be patient.
5. No fresh petition can be filed now.
6. A separate petition for child custody can be filed by you to claim the custody of your child.
1) Doesn't her testimony in the cross- examination prove to a large extent that the 498A Acquittal was just?
If her testimony in the trial court was clear and just what made her to refer appeal against the judgment before the appellate court?
2) The judgement was passed on 30-Jan-16, but I was given the true copy only on 3rd March - How much time do I have to file the appeal?
You have 30 days time to prefer an appeal from the date of order or supply of copy of judgment.
3) In the appeal can I add in additional witness or will it be based on my initial petition?
It depends on the grounds of appeal. Generally in appeal no additional witnesses or new witnesses shall be entertained.
4) Is there anyway to appeal in fast track at High Court as my case is from Aug 2012 and have been living separate since then?
No, there is no such provision.
5) Can I file another petition based on desertion based on point#4?
Yes, you can file a fresh divorce case but you may have to wait for at least 6 months.
6) I had child access for my 6 year old daughter on every Saturday based on the interim agreement with counselor, but since this judgement I am not able to meet her, but I still regularly pay the child support. Where do I now file for partial custody?
You can file child custody case before the same family court where you filed the divorce case.
