Meena Devi vs Vijay Kumar

S. Ravindra Bhat, J.—Issue notice. Mr. Yadav, accepts notice. With the consent of the learned counsel, the appeal was heard finally. The grievance of the appellant is that the impugned judgment and order of the Family Court dated 18.9.2012 decreeing the respondent/husband''s petition for dissolution of the marriage on the ground of cruelty, was made without appreciating the materials on record. The marriage between the parties was solemnized on 16.7.1986 and a son was born from the said wedlock in 1987.

The husband preferred the petition in 2010 for divorce on the grounds of cruelty and desertion, levelling several allegations.

The appellant/wife despite grant of opportunities did not file the defence/written statement to the petition in time. It was filed belatedly. There is some dispute about the nature of delay. The appellant asserts that the delay was of five months, whereas the judgment records that the delay was of nearly a year. In any event, what is relevant is that the absence of the defence led the Family Court to allude to Order 8 Rule 1 and Rule 5(2) of the CPC in the judgment and proceed on the basis that in the absence of a written statement or defence, the evidence led by the wife could not be taken into consideration and that only the evidence that could be appreciated was that led by the petitioner/husband.

The relevant discussion in this regard of the Family Court is extracted below:-

(6) However, this Court did not think it proper to pass a decree without taking on record the evidence of the petitioner. Hence the matter was fixed for recording evidence in view of Order VII Rule 5(2) CPC and the petitioner has examined two witnesses i.e. himself as PW-1 and his son Shekhar as PW-2. Although there is no written statement of the respondent on record but she insisted upon her examination and her statement was also recorded and she examined herself as RW-1. However, since there is no defence of the respondent on record, her evidence has no bearing and the same cannot form part of the judgment. The Court, however, can rely on that part of testimony of respondent where she has admitted the documents and case of the petitioner as she has disallowed to put up her defence only.

It is argued by the learned counsel for the appellant that the impugned judgment is in error of law. The learned counsel underlined that once a party is permitted to lead evidence, which deals with the issues and around which the controversy between the parties arise, the Court cannot ignore it or as in the circumstances of the case, resort to a selective appreciation, choosing to rely upon admissions and rejecting the explanations or what is deemed to be adverse against the other party.

The learned counsel for the respondent/husband on the other hand urged that the wife was not interested in filing her defence the proceedings as is evident from the delay of more than one year in filing the written statement. Consequently, the Court would have been justified in exercising its powers under Order VIII Rule 10 CPC and forthwith decreeing the suit. Nevertheless, the Family Court did not choose such a drastic action and proceeded, instead, to take into consideration the pleadings, admissions as well as the evidence of the party who was under duty to prove the allegations i.e. the respondent before decreeing the suit and no fault could be found with the impugned order.

This Court has carefully considered the submissions.

The impugned order would reveal that although the Family Court considered the wife''s evidence, only those which pertain to admissions vis-a-vis certain facts contended by the respondent/husband were given credence and taken into account; the rest were discarded. This Court is of the opinion that the Family Court perhaps might have been justified if it had adopted a uniform approach by either taking into consideration the entire evidence of the appellant or rejecting it in its entirety. Since the Court did not permit the defence to be brought on record, that action, undoubtedly, has become final. However, the selective reading of the appellant''s evidence, as was done in the circumstances of this case, in the opinion of this Court, is entirely unjustified and appears to be unfounded in law. Although, provisions of CPC (CPC) in its letter do not apply to the proceedings under the Family Courts Act, 1984, nevertheless, they are viewed as embodying principles of procedure which ought largely to guide the conduct of proceedings under the said Act. No doubt the Family Courts are entitled to evolve their own procedure to meet the peculiar challenges which arise in each proceeding, yet they would be guided by the principles embodied in the Code.

One such principle finds expression under Order 18 Rule 2 which provides that both the parties have an equal right in addressing the Court after leading their respective evidence. Although, this Court does not wish to pronounce on this aspect of the case finally, what is discernible is that if the Family Court adopts a particular approach vis-a-vis one party, the same approach should be adopted vis-a-vis the other party. In the facts of the present case, the Family Court examined evidence of the respondent/husband in its entirety, however, the same yardstick was not applied in the case of the appellant/wife, whose evidence had been relied upon selectively and only to the extent it admitted the case of the respondent/husband. This to the Court''s mind has not only resulted in inequality but also palpable injustice.

In view of the above conclusion, the impugned judgment and order is hereby set aside.

The Family Court shall hear the parties afresh and decide the matter after taking into consideration the entire material and pleadings before it. The parties are directed to be present in Family Court on 10th October, 2013. The Family Court shall endeavour to complete its proceedings and render its judgment preferably within four months from today.