Legal Question in Family Law in India

Sir,
I am really obliged with your valuable advise which has given me some hope to get justice at High Court itself rather than going to Supreme Court which would unnecessarily create financial burden on me. I filed appeal before P&H High court against the orders of lower courts.
The civil & Distt. Courts have decided the case against me merely on the statements of the respondents & have totally ignored the evidences submitted by me.
Against the impugned order, an appeal was filed by me in P&H High court but again my advocate did not argue even a single point including for the visiting rights & ultimately the case was dismissed stating �learned counsel for the plaintiff has failed to raise any argument�
Since an error has been observed in the said order, in which Hon�ble court has wrongly mentioned that
�It was held that the minor is studying at Noida and is living with her mother in New Delhi, therefore, the Court at Faridabad had no jurisdiction and the petition/suit was not maintainable�
Though The lower courts have held that �minor is studying at Noida and is living with her mother in Noida� where as High court in its order has held that �minor child is living with her mother in New Delhi�
I humbly request for your value advise, since my advocate did not argued any point, if I file for review before the High court:
� Whether court would only rectify the above mistake or
� Would I be given another opportunity to re-argue the entire case & put the things in right prospective before the court?
� Since court has not given any order on my appeal to grant me the visiting rights, would now be able to get visiting rights.
� Sir, if you feel we would be given an opportunity by the court to re-argue the case, please advise whether I should get the services of another advocate
� In case, now I change my advocate, whether court may object to it.
Sir, I would also request for your valuable advise that I filed the petition in 2002 where as respondents have produced all the evidences after the date of filing the petition & courts have also decided the case against me considering the circumstances / evidence after the date of filing petition. The evidences so produced by respondents are also contradictory / false.
Whether court should consider the circumstances / evidence produced for the relevant period i.e. upto 2002 or can decide merely on the basis of circumstances / evidence after the date of filing petition. (in 2004)
The text of the order of Hon�ble high court is reproduced here below for your ready reference
The plaintiff is in second appeal. Both the Courts below have dismissed the petition/suit of the plaintiff in which he had sought custody of minor namely, Jishnu under the provisions of Hindu Minority and Guardianship Act 1956 (for short �the Act�).
De hors the findings recorded by the Courts below on issues No.1, issue No.2 has been decided against the plaintiff concurrently to the effect that the petition/suit filed by the plaintiff was not maintainable. It was held that the minor is studying at Noida and is living with her mother in New Delhi, therefore, the Court at Faridabad had no jurisdiction and the petition/suit was not maintainable. The plaintiff has only challenged finding on issue No.1 and has not touched finding on issue No.2, which is apparent even from the substantial question of law framed in the memo of appeal in which question pertaining to finding on issue No.2 is conspicuous by its absence. In fact learned counsel for the plaintiff has failed to raise any argument much less meaningful against the finding recorded by both the Courts below on issue No.2. Hence, no substantial question of law as envisaged under Section 100 of the Code of Civil Procedure, 1908 is involved in this appeal to reverse the finding recorded by the Courts below on issue No.2 by which the petition/suit of the plaintiff has been dismissed as not maintainable. In view of the above, I do not find any merit in the present appeal and the same is hereby dismissed.
No costs.
Regards.

Asked on 10/08/10, 6:39 am

2 Answers from Attorneys

Vishwa Arya Arya & Co.

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In your case, the review would be meaningful if you could explain as to how the error about Noida and New Delhi would have an impact on the point of framing question of law as contemplated under Sec 100 CPC. In your earlier questions you did not mention about the second appeal. Changing an advocate is your prerogative and the court will not object to it.

Answered on 10/08/10, 8:06 am

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