Lawyer challenging process of evidence in maintenance case after cross
19-Aug-2023 (In Divorce Law)
Hi, Pls advice. One of my known has filed a case under section 125 for maintenance from her husband. She has given evidence in court which was also crossed by the lawyer but the initial petition I hope was in the form of affidavit (it was on plain papers in para mentioning the reasons that her husband compelled her to leave him). Now after all witness and evidences the opponent lawyer has given some references of old cases where he has mentioned that in sec. 125 summon process of evidence is not followed and it should not be in the form of affidavit. Pls advice. Pls clarify that what is to be done now as the opponent lawyer says summon not given while evidence hence case should be dismissed. Though the opponent lawyer himself took evidence and crossed.
You must understand that the petition under Section 125 Cr.P.C. as well as the affidavits in support thereof and affidavit of evidence are always typed on the plain papers. The affidavit is required to be attested by the Oath Commissioner/Notary Public or the Presiding Officer of the Court.
Examination of witness in chief is usually in the form of affidavit and once it is filed in the trial court, the opponent lawyer/party is given chance of cross examination of such witness. Hence, such a defence is not available to the opponent lawyer. There are numerous precedents (judgements) available on the other side also.
You must also note that the courts are usually lenient while trying petition under Section 125 Cr.P.C. and granting maintenance to wives, children and old parents who are unable to maintain themselves.
Still if you have any doubt you can contact me.
Examination of witness in chief is usually in the form of affidavit and once it is filed in the trial court, the opponent lawyer/party is given chance of cross examination of such witness. Hence, such a defence is not available to the opponent lawyer. There are numerous precedents (judgements) available on the other side also.
You must also note that the courts are usually lenient while trying petition under Section 125 Cr.P.C. and granting maintenance to wives, children and old parents who are unable to maintain themselves.
Still if you have any doubt you can contact me.
Dear friend,
1.Your advocate should submit that court should allow since the case has already been processed and why opposite advocate did not object ab-initio when case was filed and a copy was given to him.
2. For this procedural lapse, court may be requested to accept fresh petition with same contents.
1.Your advocate should submit that court should allow since the case has already been processed and why opposite advocate did not object ab-initio when case was filed and a copy was given to him.
2. For this procedural lapse, court may be requested to accept fresh petition with same contents.
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