Roy Vijayan vs Lakshmi Karthikeyan

Harun-Al-Rashid, J.—This original petition is filed by the respondent in O.P. No. 65/2009 on the file of the Family Court, Ernakulam, to set aside Ext. P6 interim order and for a direction directing the Family Court to reopen the evidence from the petitioner''s side for receiving mobile bills produced by the petitioner and to tender evidence. The parties are hereinafter referred to as in O.P. No. 65/2009.

The wife is the petitioner in O.P. No. 65/2009. The original petition was filed in January, 2009 seeking a decree of divorce dissolving the marriage between the petitioner and the respondent, solemnized on 11.2.1995. Ext. P1 is the copy of the said original petition.

The respondent-husband filed written statement on 3rd February, 2010. I.A. No. 747/2014 was filed for reopening the evidence from the side of the petitioner to receive certain documents. The documents are sought to be produced based on the contentions raised in the written statement. The respondent-husband has raised certain contentions. On the basis of the said contentions, the respondent-husband now wanted to produce certain documents in support of it. Ext. P4 is the copy of I.A. No. 745/2014 and Ext. P5 is the objection filed by the wife. It is inter alia stated in the objection that the respondent-husband is adopting every delaying tactics by filing applications after applications, without any merits, in spite of direction issued by this Court for speedy disposal of the case. It is also stated that the present application is the fourth application seeking similar relief to that of earlier applications. It is pointed out that earlier three similar applications were dismissed.

The husband filed I.A. No. 3838/2013 seeking a direction to the Nodal Officer, Vodaphone, Vodafone Cellular Ltd. and the Nodal officer, Tata Tele Service, to store the conversation details and phone details of phone Nos. 9846174868 and 80890216117 respectively during the period from 1.10.2012 to 28.10.2013 in safe custody without delete or alterations and provide before the Court as and when the Court directs for the same. The allegations made in paragraph 13 of the written statement is the basis for filing I.A. No. 3838/2013. The Family Court, by order dated 31.10.2013, dismissed the I.A., the relevant portion of which reads as follows:

"5. In the reason stated, I am to hold that the intention of the petitioner is very clear that he wants to protract the matter, by causing much delay, thereby he wants the respondent and his children, are to be remained in the corridor of the Courts itself, as litigants, for ever. Such kind of practice cannot be allowed. The courts are functioning for dispensing justice to those litigants who are entitled to legal claims, who are knocking the door of justice, and not for ''dispensing with" justice. In the reason stated, I am not inclined to consider this I.A., therefore, the I.A. stands dismissed with costs. Issue carbon copy as per rules."

The learned Senior Counsel for the respondent also brought to the notice of this Court the judgment dated 24.6.11 of this Court in O.P. (F.C.) No. 1953/2011, filed by the husband against the wife. The husband questioned Ext. P3 order passed by the Family Court, wherein the request made by the husband to refer the parties for counselling before an expert professional counselor in any of the four centres mentioned therein was rejected. This Court dismissed the said O.P. (F.C.) filed challenging the said order.

The trial court jointly tried the original petition filed by the wife along with the original petition filed by the husband. Both the cases are of the year 2009. The parties and their witnesses were examined and evidence was closed. After closing the evidence, the case was adjourned to 2.7.2014 for final hearing.

The petitioner herein filed O.P. (F.C.) No. 267/2012 challenging the order in I.A. No. 4668/2011 in O.P. No. 65/2009. That was dismissed as withdrawn by this Court by judgment dated 10th February, 2012. The respondent-husband filed Mat. Appeal No. 85/2012 against the common judgment passed by the court below in both the original petitions on 22.8.2011. The Family Court allowed the original petition filed by the wife seeking divorce and dismissed the original petition filed by the husband for restoration of conjugal rights. Mat. Appeal Nos. 85 and 87 of 2012 were disposed of by this Court by a common judgment dated 14.8.2012. The relevant portion of the judgment in Mat. Appeal No. 85/2012 is extracted below:

"3. There was a direction by the High Court to dispose of the Original Petitions expeditiously. The court below ordered for joint trial of the Original Petitions as per the order dated 4.6.2011. A Commissioner was appointed to record the evidence of the parties. Due to non-cooperation of the parties, the Commissioner approached the Family Court for issuing appropriate directions. On 29.6.2011, the court below issued a direction to the Commissioner to complete recording of the evidence as expeditiously as possible and to file the evidence and report on or before 10.8.2011. The Family Court adjourned the Original Petitions to 12.8.2011. The Commissioner filed a report stating that though the respondent/wife was present before the Commissioner, the appellant/husband remained absent. The counsel for the appellant was also absent. The Commissioner marked Exts. A1 to A4 on the basis of the proof affidavit.

The cases were taken up before Court on 12.8.2011. It is submitted by the learned counsel for the appellant that the senior of the counsel for the appellant passed away and a request was made for adjournment. The Court adjourned the case to 16.8.2011. On that day, the appellant/husband and his counsel were absent. The respondent and her counsel were present. The Family Court set the appellant ex parte and disposed of the Original Petitions in the manner indicated above.

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Accordingly, the Mat. Appeals are allowed and the common judgment dated 22.8.2011 in O.P. Nos. 65 and 1955 of 2009 on the file of the Family Court, Ernakulam is set aside. The said Original Petitions are remanded to the Family Court, Ernakulam for fresh disposal. The Family Court shall give opportunity to the appellant/husband to cross examine the respondent/wife. The appellant would also be entitled to adduce evidence and to examine witnesses, if any. The respondent/wife also would be entitled to adduce further evidence and to examine witnesses on her side, if any. In order to ensure early disposal of the cases, the Family Court may either examine the parties and witnesses, if any, before Court or by appointing a Commissioner. It is undertaken by the appellant/husband that he would not ask for any adjournment. No such request for adjournment need be entertained by the Family Court, unless the Family Court is satisfied that the party could not appear for reasons absolutely beyond his control. The parties shall appear before the Family Court on 10.9.2012. The Family Court shall dispose of the cases before 15.12.2012. The remand is on further condition that the appellant shall pay a sum of Rs. 5,000/- as costs to the respondent/wife payable on or before 10.9.2012."

In paragraph 10 of the judgment the respondent-husband has undertaken that he would not ask for any adjournment. This Court issued direction stating that no such request for adjournment need be entertained by the Family Court, unless the Family Court is satisfied that the party could not appear for reasons beyond his control. This Court directed the parties to appear before the Family Court on 10.9.2012 and directed the Family Court to dispose of the two cases on or before 15.12.2012. Learned senior counsel appearing for the petitioner-wife also brought to our notice the judgment of this Court in W.P. (C). No. 27735/2009 filed by the husband against the wife. The judgment dated 6th September, 2012 in the said Writ Petition shows that the Writ Petition has been closed without examining the merits of the grounds mentioned in the Writ Petition.

We find that the respondent-husband has been filing cases after cases and petitions after petitions before the Family Court and this Court, on various occasions. In spite of the specific direction by this Court to close evidence and dispose of the matter finally on or before 15.12.2012, the said direction could not be carried out. The court below closed the evidence after examination of parties and adjourned the cases for final hearing to 2.7.2014. The respondent was examined on 22.2.2013 and his witness was examined on 24.6.2013. The petitioner-wife and her witnesses were examined before that date. I.A. No. 747/2014 filed after the closure of the evidence at the distance of time cannot be countenanced at any rate. This Court found that there is no bona fide in filing the petition for reopening the evidence. There is every reason to justify the reason stated by the Family Court that the respondent is taking all efforts to see that the proceedings are dragged to the maximum extent possible. We do not find any reason to interfere with the impugned order. Accordingly, this original petition is dismissed.

The Family Court shall dispose of both the original petitions within three weeks from today. The parties shall be present in court below on 7th October, 2014.