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LegalFighter (test)     27 January 2024

Judge suggesting for main petition while an ia is filed

Dear Experts,

My first wife expired 1.5 years back.We lived only for one year till 2013 and she got separated, we got divorce in 2016.But my son was living with my first wife since he was under age 5 when I battled for custody.While so I got remarried in 2019 but visiting my first son as per HC order.


After my first wife's demise in May 2022, I filed a custody case in her district Salem asking custody of my son from my ex inlaws. It took 6 months for me to number the case i filed as it was returned for multiple reasons or mistakes.Then judge was transferred and nearly past one year Salem FC doesn't have judge.Now judge came but he is asking us to proceed with the main petition as the defendant has filed the counter.


The problem is I filed main petition with visitation IA and due to clerical mistake they numbered only main petition but not the IA.I wanted to proceed with visitation first because of below reasons:


1. Since from the beginning my son was with my first wife and she did not allow me to visit him.I visited him only after courts visitation order.So in order to develop a bond with my son, I want to visit and spend some time with him for few months.


2. If we proceed with the main petition my 10 year old son directly say that he won't go with his father as I could not see him past two years.


3.In feature if I go for an appeal, the defendant will take a stake like 'he have filed only custody petition but he did not file a visitation IA as he did not want to see his son'.


Please suggest me what should I ask to the judge. Suppose If I need to go for an appeal for visitation, what document shall I expect from this court?




 4 Replies

T. Kalaiselvan, Advocate (Advocate)     27 January 2024

You ask your advocate to insist before the court to either take up the IA filed for visitation rights or to dipose it or to return it with reasons.

He can file a memo stating that the main petition may be stayed till the disposal of the IA.

It is the mistake of court staff for not numbering the IA and you cannot suffer due to somebody's mistake.

If the court is still not conducive then you can file a revision petition before high court based on the SR number given for the  main petition at the time of initial filing, seeking direction to the trial court to consider the IA on merits and to stall the proceedings in the main petition till then.


1 Like

LegalFighter (test)     28 January 2024

Thankyou very much Sir.My advocate did not mention these kind of advices.You meant that I can file a memo stating main petition shall be stayed, isn't Sir?

T. Kalaiselvan, Advocate (Advocate)     29 January 2024

You can proceed as per the your understanding. You can discuss at length with your advocate before taking any decision.

1 Like

LegalFighter (test)     05 February 2024

Sir, I filed a memo myself as my advocate is out of station due to medical issue.Judge accepted and highlighted that there is no IA in the petition.I told it should be there as court returned three times for mistakes and I personally represented and gave back the set of petitions all three times.

Judge looked at the bench cleark.Don't know what happened to my IA.

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