If a petition for divorce is dismissed, can I file the petition in another court with jurisdiction (without going to highcourt?)
Tajobsindia (Senior Partner ) 29 October 2014
1. Mention exact reason for dismissal.
2. Restore (O9/R4 CPC) the divorce case in the same Court where it was filed which is one way out.
3. Filling a fresh case in new Family court in the district where petitioner party has now shifted may not have territorial jurisdiction (check jurisdiction first from an local advocate) under the Marriage Act under which the previous case for divorce was filled.
ArpitBhatia (None) 30 October 2014
|Originally posted by : Tajobsindia|
Thanks for the response.
The place where I want to file the 2nd petition has jurisdiction (this is confirmed by an advocate already). Proper hearings didn't happen in the first petition and the judge has preconceived notions and wouldn't listen to any advocate.
Now I understand I can file for review and then can go to the high court. But the question is if I can file the petition again (changed, updated with new facts) in a court with jurisdiction in another state without going for review and then the high court?
Jimmy (Manager) 30 October 2014
In general when a case is refiled after it was dismissed, opposing party can raise numerous defenses such as res judicata, constructuve res judicata, estoppel, etc. These defenses vary from country to country but basically they are used to prevent relitigation on the same issues/facts/etc. Res judicata is even broader and a good advocate, under the theory of constructive res judicata in India can throw out both issues and claims even if they were not litigated in the earlier proceeding but could have been litigated there. The logic is very simple: Judicial efficiency and conservation of judicial resources. Imagine what would happen if a person loses a case and keep refiling it... The usual procedure for addressing such situation is to appeal. In India, appeals can be filed even very late after the time to file has expired as there is such a thing called condonation of delay which is granted liberally. In America, if you are late by one day, forget it, you are out of luck as the appeals Court loses jurisdiction over the matter altogether if there is a delay in filing the appeal. Ok... so whats my advise? If the facts of your second case are the same, then file an appeal. If you have new facts which occurred after the order of dismissal was issued in the first case or facts were fraudulently concealed by your wife during the earlier proceeding, then file a new petition in the lower court itself. I am not an advocate but hope this information helps. By the way, which two courts are you referring to, which have parallel jurisdiction to issue a divorce decree?
ArpitBhatia (None) 05 November 2014
@Jimmy: thanks for the response, but I didn't understand a word of what you said. I am seeking specific answer and this is not an academic discussion.
Adv. Chandrasekhar (Advocate) 05 November 2014
No. U can't. Red judicata applies. U have Togo in appeal against the judgment, which you feel biased.