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vajradhanvi2021 (pvt)     22 June 2021

Fir during divorce

Dear Experts

After filing for divorce on the ground of adultery. Later on, I had lodged an FIR for the assault caused by my husband. Apart from that, my husband has been harassing other ladies with their naked photos with whom he was having affairs.

Because of his bad character, he was arrested and later he was released on bail.

In addition to that, he has been served summons two times and has not been appeared once in court.

Can he be forced to appear in court on the service of third summon?

Please suggest with legal guidance

Thank you



Learning

 5 Replies

Amit Sharma   01 October 2021

Ma'am,

If you're able to prove that the summons were indeed duly served to him in sufficient time, you may request the court to consider moving ex parte. 

Order IX, Rule 6 (1) (a)  of the CPC says that if it is proved that summons were duly served to the defendant, in sufficient time,  (twice in your case), the Court may make an order that the suit be heard ex parte.

Wish you the very best. 

Seema Joshi   01 October 2021

First you have to prove that summons are duely served up on him and if it's than ask court to issue non bailable and if after that also he doesn't truned up can go for 82-83 proceedings ...better ask your lawyer as they must be aware of all the situation

Amit Sharma   01 October 2021

Alternatively, you may also invoke Section 32 of CPC, where the Court may compel his attendance by issuing a warrant for his arrest or attaching or selling his property, or impose a fine / order him to furnish security for his appearance and in default commit him to a civil prison. 

So you have options between compelling appearance or  requesting the Court to decide exparte.

Disucssing the pros/cons of both the options with your lawyer might be a good place to start. 

Raghav Arora   01 October 2021

If the provisions of CPC have to apply,
then  Sec 32 of CPC to ( to compel attendance of person) be invoked subject to condition that  Summons have already been issued under Sec 30 of CPC  earlier.

 

In addition to above , OrdervXVI pertains to Summoning & attendance of witnesses.  Rule 10 under Order XVI  deals with procedure  when witness fails to comply  with summons.

 

Further Rule 12 under Order XVI also deals with procedure if witness fails to appear. ( But this will not move her husband for amount involved is very less.). Any way provision exists

 

Also, somebody has mentioned sbout sec 82 Crpc. In fact before that sec 87 Crpc should be invoked.

Hope this helps!

taheersyed hameed   01 October 2021

good information.

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