Banu vs Govindaperumal

S. Rajeswaran, J.—The above Civil Revision Petitions are filed against the Orders dated 13.05.2008 passed in I.A.Nos.518 and 516 of

2008 in M.O.P. No. 123 of 2002 on the file of the Family Court, Pondicherry.

The respondent /wife in M.O.P. No. 123 of 2002 on the file of Family Court, Pondicherry, is the revision petitioner before this Court, in both

the revision petitions. She is aggrieved by the orders of the Family Court dated 13.05.2008, made in I.A. No. 518 of 2008 and I.A. No. 516 of

2008 filed by her, to summon the list mentioned witnesses for their attendance before this Court with documents sought for and to re-open the

respondent''s side evidence in M.O.P. respectively.

The M.O.P. No. 123 of 2002 was filed by the respondent/husband u/s 13(1)(1)(a) of the Hindu Marriage Act 1955, for a judgment and decree

in favour of the respondent/husband, by dissolving the marriage dated 6.12.2000 solemnised between the parties. According to the

respondent/husband, within 15 days of their marriage, which was celebrated on 6.12.2000, the petitioner/wife started having difference of opinion

against the respondent/husband. The respondent/husband could not understand the attitude of the petitioner/wife from the beginning of their first-

night and the petitioner/wife being a French national, decided to go to France for employment. Without the permission of the respondent/husband,

the petitioner/wife decided to break the matrimonial life once and for all and forced the respondent/ husband to execute a written deed of divorce.

The act of the petitioner/wife amounts to guilty and cruelty and she wilfully neglected the husband with cruel intentions. The respondent/husband

patiently waited for the petitioner/wife, but the petitioner/wife neglected him and also caused harassment and therefore, the respondent/husband is

entitled to a decree of divorce on the ground of cruelty.

The divorce petition was contested by the petitioner/wife by filing a counter wherein she denied that a divorce deed was executed as alleged by

her husband and she also stated that she did not commit a cruelty towards her husband. She pointed out in the counter that she filed M.O.P. No.

157 of 2002 before the same Family Court, for restitution of conjugal rights. She further stated that she is an Indian national and therefore, the

allegation of her going to France is not true. She also denied the other allegations such as causing cruelty and harassment. She also made some

allegations against her husband which includes her husband demanding dowry and insisting the wife to get a transfer of the plot standing in the name

of her mother, in favour of him. She further stated that as she failed to transfer the plot as demanded by her husband, she was forced to go away

from the matrimonial home and at present she is residing with her mother. Hence, she prayed for the dismissal of M.O.P. No. 123 of 2002.

The wife also filed an additional counter wherein it was stated that the husband married one Elisa and both her husband and the said Elisa have a

male child by name Mohan Ram born on 17.08.2004 and the said birth was registered at the office of the Pondicherry Municipality. She also filed

a Birth Certificate along with the additional counter filed by her. Thus, in the additional counter, the petitioner/ wife accused the

respondent/husband of bigamy and therefore, he is not entitled to a decree of divorce.

The respondent/husband filed a reply statement to the additional counter filed by the petitioner/wife. In the reply filed by him, he denied that he

married one Elisa and begot a male child by name G.Mohanram, on 17.8.2004. According to the respondent/husband, the additional counter was

filed absolutely on false and imaginary allegations with malafide intentions to harass the husband and also to prejudice the mind of the Court.

The M.O.P. No. 123 of 2002 filed by the respondent/ husband and M.O.P. No. 157 of 2002 filed by the petitioner/ wife are being tried

together by the Family Court. When M.O.P. No. 123 of 2002 was posted on 12.11.2007, for the evidence of the husband, the petitioner/wife

filed an un-numbered I.A. of 2008 under the Order XVI Rule 1 (2) read with Section 151 C.P.C., to summon the list mentioned witnesses before

the court and to produce the petition mentioned documents and also to speak on the contents therein. The list of witnesses shown in the petition

contains the names of 1) Sri Krishna Nursing Home, represented by its Manager and 2) The Registrar of Births and Deaths.

The purpose of summoning the Manager of Sri Krishna Nursing Home is to produce all the original records pertaining to the birth of Mohan

Ram, G., who was born on 17.8.2004 at Sri Krishna Nursing Home and also to speak on the contents therein. Similarly, the purpose of calling the

Registrar of Births and Deaths is to produce all the original records pertaining to the birth of Mohanram, G. in Regn. No. N/2004/00060, born on

17.8.2004 and to speak on the contents of the same.

The Family Court, by order dated 7.03.2008, rejected the un-numbered I.A. Of 2008 on the ground that when the petitioner herself is not

aware of the details of the documents, the court cannot issue summons for production of documents in general terms. Accordingly, the petition was

dismissed with liberty to file a fresh application with complete details of documents required by her, if necessary.

Thereafter, the petitioner/wife filed I.A. No. 516 of 2008 to re-open the respondent''s side evidence in M.O.P. No. 123 of 2002 and the case

was posted for further proceedings. She also filed another application in I.A. No. 518 of 2008 under Order XVI Rule 1(2) to summon the list

mentioned witnesses for their attendance with documents sought for in the petition and to speak on the contents therein.

In the affidavit filed in support of the applications, it is stated by the petitioner/wife that after the husband''s side evidence in M.O.P. No. 123 of

2002, the same was adjourned to for the wife''s side evidence. She examined herself and later she filed an un-numbered application for summoning

the official witnesses and for production of some documents. That application was rejected on 7.3.2008 and the matter was posted for further

evidence on 28.03.2008. On that date, as she did not produce any witnesses on her side, the evidence on her side was closed with an observation

that no steps was taken for issue of summons to the list mentioned witnesses for their examination and hence, the evidence on her side was closed.

She did not know the contents of the order dated 7.3.2008, in which, liberty was given to her to file a fresh application, if necessary, for

summoning the official witnesses, for the purpose of the production of documents. She applied for a certified copy of the order dated 7.3.2008 on

10.04.2008 to know the details of the order, but, the same was not received by her and therefore, she could not file any application as per the

observation made in the order on 28.03.2008. Therefore, it has become absolutely necessary to re-open the wife''s side evidence with an

opportunity to summon the witnesses with documents and to examine them. Hence, she filed I.A. No. 516 and 518 of 2008 for the aforesaid

reliefs. Both the applications were resisted by the respondent/husband in M.O.P. No. 123 of 2002.

Heard the learned Counsel for the petitioner/wife and the learned Counsel for the respondent/husband. I have also gone through the entire

documents available on record.

A perusal of the orders passed by the Family Court will show that the Family court dismissed both the applications on the main ground that the

wife is estopped from filing a petition for issue of summons for the said purposes and for that purpose, to file a petition to re-open. Hence, the

Family Court held that the evidence cannot be re-opened and there is no point to re-open the evidence and accordingly, dismissed both the

petitions. The main findings of the Family Court read as under:

Here in the case before us the witness mentioned in I.A. No. 1862 of 2007 are not required by that time to be summoned by way of issuing

summons for giving evidence. The petitioner herein ought to have known that these witnesses cannot be brought by herself without any summons

for either giving evidence or producing documents and she ought to have known that she can bring these witnesses only on summons. But even

then she has filed one petition only for condoning the delay in filing the list of witnesses and there was no prayer for issuing of summons either for

appearance and giving evidence or for producing documents. That is the proper time by which she ought to have exercised her requirements or the

right to apply for issue of summons to those witnesses. But for reasons best known to herself she has not done so. A already stated even in the

order in I.A. No. 1862 of 2007 this Court has condoned the delay by observing that the petition is only for condoning the delay in filing the list of

witnesses without any prayer for issue of summons to the witnesses either to appear and give evidence or for producing documents. Since the

petitioner has not asked for issue of summons at the time of filing I.A. No. 1862 of 2007 or atleast before the next date of hearing i.e. 28.03.2008,

as rightly pointed out by the respondent herein the petitioner should be taken to have waived her right by her conduct which warrants an inference

of the relinquishment of a right or a privilege. As held in the case reported in AIR 1989 SUPREME COURT 1834 referred above the intention of

the petitioner herein or what she would have thought of at the time of filing I.A. No. 1862 of 2007 is immaterial and it has to be taken as that the

petitioner has forsaken the assertion of her right at the proper opportunity. So it is held that as pointed by the petitioner herein there is waiver of

right by the petitioner for asking for issue of summons to the witnesses either for appearance and giving evidence or for producing documents and

she is estopped from filing a petition for issue of summons for the said purposes and for that purpose to file a petition to re-open. So, it is held that

for the purpose of issuing summons to the witnesses or for any purpose, the evidence cannot be reopened and so it is held that there is no reason

to reopen the evidence of the petitioner herein (respondent in the main petition) and this point is answered accordingly.

I am of the considered view that the Family Court has adopted a hyper-technical approach to dismiss the petitions filed by the petitioner/wife

and therefore, I do not agree with the reasons given by the Family Court for dismissing the applications.

According to the petitioner/wife, when M.O.P. No. 123 of 2002 was pending before the Family Court, she came to know that the husband

illegally married another woman by name G.Elisa and out of the same said illicit marriage, a male child by name Mohanram was born to them on

17.08.2004, at Sri Krishna Nursing Home. The birth of G.Mohanram was registered with the Registrar of Births and Deaths, Pondicherry

Municipality. On coming to know about this, she filed an additional counter and to prove that the husband is guilty of bigamy and also to prove that

the husband is guilty of bigamy and also to prove that a male child was born to him through the illegal second marriage, she wanted to summon the

hospital authority and the Registrar of Births and Deaths. It is also not in dispute that a similar application was filed earlier and the same was

rejected on 7.3.2008 with an observation that she could file a fresh application with complete details, if necessary. When she filed the fresh

application on the basis of the liberty given to her in the earlier order dated 7.3.2008, it cannot be said that the wife is estopped from filing another

application especially when she contended that she came to know about the entire details of the order dated 7.3.2008 only after 28.03.2008 when

the wife''s side evidence was closed. Therefore, to render complete justice and to give an opportunity to the wife, to prove her contention that her

husband has become a father of a male child through another woman, the trial court ought to have given an opportunity by allowing the

applications. Instead, the Family Court adopted a hyper-technical approach and dismissed the applications, warranting interference by this Court

under Article 227 of the Constitution of India.

The Family Courts cannot be Civil Courts and strict rule of evidence and strict procedures of the Civil Court are not applicable to them. The

Family Courts should see that they are dealing with emotions between the parties and therefore, they should be more considerate and lenient than

the Civil Courts in entertaining the family disputes. I am not happy with the way the Family Court of Pondicherry went out of the way to dismiss the

petitions filed by the petitioner/wife to summon certain witnesses to prove the factum of the birth of a male child through her husband and another

woman. Hence, I am inclined to interfere with both the orders of the Family Court dated 13.5.2008 and accordingly, both the revision petitions are

allowed.

Considering the fact that the wife is also guilty of delay in filing both the applications, I direct the petitioner/wife to pay a total sum of Rs.

1,000/- to the respondent/husband towards the cost within a period of one month from the date of receipt of a copy of this order. On such

payment is made, within the stipulated time, the Family Court should reopen the evidence of the petitioner/wife and summon the witnesses shown in

I.A. No. 518 of 2008 to produce the documents sought for in the petition. As both the M.O.Ps'' were filed in the year 2002 itself, I direct the

Family Court to take every step to dispose of both theM.O.Ps'' as expeditiously as possible, preferably within a period of four months from the

date of receipt of a copy of this order. It is also made clear that if the petitioner/wife has failed to pay the total cost of Rs. 1,000/- to the

respondent/husband within the time stipulated, this order gets recalled automatically without further reference to this Court.

In the result, C.R.P. No. 2252 and 2253 of 2008 are allowed. Connected M.P. No. 1 of 2008 is also closed.