Rosily vs John

Devan Ramachandran, J

The respondent has filed O.P.No.172/2017 before the learned Family Court, Irinjalakkuda, making certain claims against the petitioner-his wife.

It transpires that, the petitioner-wife, thereupon filed an application, numbered as I.A.No.28/2023, to allow her daughters, who are abroad, to testify as witnesses through electronic platform, which was allowed on 17.11.2023. Thereupon, after elapse of some time, she filed I.A.No.48/2024, seeking that the said witnesses be allowed to offer their deposition from their residence through videoconferencing, without having to travel to the Indian Embassy – which is the remote point as notified under Electronic Video Linkage Rules for Court (Kerala), 2021. The petitioner explains that one of her daughters stays four hours away from the Embassy, thus making it very difficult for her to travel to it; while, the other one has three children, thus incapacitating her to offer testimony through the Embassy.

The learned Family Court, however, dismissed I.A.No.48/2024 through Ext.P3 order, accusing the petitioner of not having taken steps to examine the witnesses in spite of the factum of I.A.No.28/2023 having been allowed on 17.11.2023; and further stating that this Court has already fixed a time frame for disposal of the Original Petition, through the order in I.A.No.1/2024 in Mat.Appeal No.337/2023, which is to expire on 09.11.2024.

Smt.Sindhu Santhalingam – learned counsel for the petitioner, vehemently argued that her client, being the mother of the witnesses sought to be examined, is fully aware of their difficulty and that it is, therefore, that she filed I.A.No.48/2024 seeking permission for them to appear for videoconferencing from their respective residences. She explained that if this is not permitted, her client would lose the opportunity of examining very relevant witnesses; and thus prayed that Ext.P3 be set aside.

Sri.Gracious Kuriakose, learned Senior Counsel, instructed by Sri.Pranoy K. Kottaram – learned counsel for the respondent, argued that the attempt of the petitioner is only to protract the proceedings, as is evident from the factum of her not having taken any steps after the learned Court allowed I.A.No.28/2023 as early as on 17.11.2023. He contended that, in any event, the difficulties now stated by the petitioner in I.A.No.48/2024 is not that of hers, but that of the proposed witnesses; and hence, that it is for the latter to have informed the Court appropriately, after they are served summons to appear online and offer testimony. He, therefore, argued that Ext.P3 is irreproachable and prayed that it be left uninterdicted.

We have examined Ext.P3, on the touchstone of the afore rival submissions.

We do not now propose to go into the merits of any of the rival contentions of the parties, as impelled in the Original Petition; and we confine ourselves solely to the question whether the petitioner was justified in having filed I.A.No.48/2024 on behalf of the witnesses and to seek their exemption from having to travel into the Indian Embassy, which is the designated remote point, as per the Rules.

Prima facie, it is indubitable that, when a litigant cite witnesses and calls them for examination; and if the latter is to encounter difficulty, it is for them to inform the Court appropriately.

In this case, as rightly argued by the learned Senior Counsel – Sri.Gracious Kuriakose, the order allowing the witnesses to testify through online medium was issued by the learned Family Court as early as on 17.11.2023 in I.A.No.28/2023. If the petitioner has not taken any steps thereafter, then she cannot find fault with the learned Court in having issued Ext.P3; but a larger issue arises whether she should now be foreclosed from leading evidence, to the extent which is statutorily permissible to her.

The factum of this Court having fixed a time frame, which expires on 09.11.2024, to dispose of the Original Petition is also something which is very pertinent and relevant. Normally, we cannot interfere with the same.

However, adverting to the factum of the petitioner requiring to be offered every opportunity in law to lead evidence, we are certain that we will be justified in offering her a limited indulgence.

In the afore circumstances, and in such perspective, we allow this Original Petition in part; however, clarifying that, even though Ext.P3 order is not interdicted by us, it will not preclude the petitioner from taking steps to the witnesses and for the latter to inform the Court of any difficulty that they may face. However, all they should be done within a time frame that we propose.

Consequently, we allow the petitioner to take steps to the cited witnesses, as permitted by the learned Family Court in I.A.No.28/2023, within a period of two weeks from the date of receipt of a copy of this judgment. On this being done, the learned Family Court will proceed to record the testimony of the witnesses as per law; and if they raise any valid objection, the same will also be considered, after affording necessary opportunities to both sides as per law.

We also leave liberty to the parties to move the learned Bench of this Court which passed the judgment in Mat.Appeal No.337/2023, for extension of time, adverting to our afore directions.