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Re filing of HMA 13

(Querist) 19 April 2014 This query is : Resolved 
Respected experts. In the HMA 13 case filed by my husband in Patila , which is transfered to Amritsar , I got the summoned to appear in the court and I appeared personely with my lawyer but niether my husbad nore his lawyer appeared in the court. My advocate requested for dismissal of the case but Judge told that summons copy is not received back which is sent to my husband and said that he will send the notice and in next date if he will not appear then he will dismis It. Where as we observe that advocate of my husband in other cases 125 , CRR 125 , was moving there and noted the along with his clerk and we read the cause list and found that he was not having any other case in that particular court. We requested to judge that his advocatev was here in the court but he said he has not appeared here and given the next date. The reason of not summoning was he has given the adress of his aunty in Patiala where as he is living in some other city . Now my query is should I tell to court abt his new address to serve the summons or request for dismissal of the case ? Suppose the case is dismissed then can he file the HMA 13 case again ? If no then it is ok if yes on the same grounds or new reasons ? Is there no restriction to file the same case again and again ? My elder son is with my husband for last one and half year and younger son is with me which is of 15 months. I hv not filed child custody yet for my elder son will it create any adverse effect on my other cases ? Kindly advice.
Devajyoti Barman (Expert) 19 April 2014
1.Yes you can apply for amendment of cause title or for substituted service for effective service.
2. Matrimonial suits can be filed on new cause of action.
3. Non filing of custody is of no hindrance to the merit of your case.
Rajendra K Goyal (Expert) 20 April 2014
- You should tell new address and should also try for substituted service.

-can not be filed for same cause of action.

- Non filing for custody would not create any adverse effect.
Surender Kumar Sharma (Expert) 21 April 2014
amendment can be made at any stage before the judgement so make the amendment
-add new cause of action
- child custody in of course you can get according to your status for maintaining the child
T. Kalaiselvan, Advocate (Expert) 21 April 2014
In a divorce case filed by your husband, you got it transferred to the place of your choice and have appeared before the court on receipt of summon from court. The same thing is applicable to your husband also, first he has to receive the summons then only he can appear before the court, therefore, as advised by the judges, wait for the next date of hearing, in case the summons are returned undelivered, then you may take up for substituted service of summon (that too it is not your job to seek for SS), allow the court to dismiss the petition as per its discretion, in case he is adopting the strategy of filing a similar petition under the same grounds, you can get that also dismissed on the grounds of resjudicata or challenge the same if he is filing set aside petition or an appeal over the dismissal. For custody of your child, you have to file a petition yourself, ofcourse non filing of custody case will not impact the present case.
INDIAN LADY (Querist) 31 May 2014
Thanks to all of you


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