AI Structured Summary
Not yet generated for this judgment
Judgment
This appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment and order dated 30.04.2014, passed by learned Judge, Family Court, Agartala, West Tripura, in case No.T.S.(Divorce) 234 of 2010, whereunder the prayer of the appellant-petitioner for dissolving the marriage between the parties was rejected by the learned Judge, Family Court.
Heard learned counsel, Mr. H.K. Bhowmik for the appellant and learned counsel, Mr. S. Kar Bhowmik for the respondent.
It is an admitted position that the appellant and the respondent are husband and wife and their marriage was solemnized as per Hindu rites, and subsequently it was registered with the office of the Hindu Marriage Registrar. It is also an admitted position that they are living apart since long.
The appellant instituted Title Suit(Divorce) No.234 of 2010 under Section 13(1) of the Hindu Marriage Act, 1955 seeking dissolution of the marriage between him and the respondent-wife. It is also an admitted position that the respondent-wife instituted Misc. case No.145 of 2011 against the appellant-husband under Section 125 of the CrPC seeking maintenance.
Learned Judge, Family Court took both the cases together for hearing and disposal and one set of evidence of the parties, i.e. the husband as well as the wife and their witnesses were recorded and taking signature of the parties and their witnesses those were tagged with both the cases and thereafter both the cases were disposed of. By order dated 28.01.2014, Misc. case No.145 of 2011 filed under Section 125 of CrPC by the respondent-wife was disposed of refusing maintenance, and by order dated 30.04.2014 the divorce case filed by the appellant-husband was also dismissed.
The respondent-wife preferred Crl. Rev. Pet. No.27 of 2014 before this Court and in the Single Bench, one of us(S.C. Das, J.) disposed that criminal revision petition by judgment dated 20.08.2014, setting aside order dated 28.01.2014 passed in Misc. case No.145 of 2011. The observation made in para 12 of that judgment dated 20.08.2014 in Crl. Rev. Pet. No.27 of 2014 reads thus-
"12. A very shocking fact has been brought to the notice of the Court by the learned counsel of both side.
It is submitted that the respondent (husband) instituted a divorce case against the petitioner i.e. Case No.TS(DIV) 234 of 2010 and thereafter the petitioner instituted the present Misc. Case i.e. Misc. Case No. 145 of 2014 under Section 125 of Cr.P.C. Learned Judge Family Court took up both the cases simultaneously on the same date and one set of evidence of the petitioner and the respondent as well as their witnesses were recorded in both the cases and after making copy of the same and putting the witness number, tagged it in both the cases. The procedure adopted by the learned Judge, Family Court is quite contrary to what has been decided by the Division Bench of this Court in Soma Rani Das V. Pradip Das, reported in 2014 2 TLR 27. In an identical factual situation the Division Bench has held that the Family Court can device its own procedure according to the rules of natural justice. The Court held that the Family Court and the counsellor of the Family Court is duty bound to explain the parties as to the procedure being followed so that the parties may be aware of the procedure adopted in the Court. Evidence recorded in one case can be read in another case if both the cases are identical or similar in nature. While doing so, the Family Court must clearly satisfy in the order that he feels that in the facts and circumstances of the case the evidence led in one case should be read in other case. I would like to refer here paragraphs 6, 7, 8, 9, 10 and 11 of the judgment which read as follows:-
"6. When two or more cases are identical or similar in nature a Judge may be justified in recording the evidence in one case and reading that in another case. However, before doing so he must clearly specify in the order that he feels that in the facts and circumstances of the case the evidence led in one case should be read in the other case. Judicial records must be proper and must reflect the true state of affairs and should be an accurate record of what has transpired in court. Without passing a judicial order justifying such action the evidence recorded in one case cannot be read in another case.
In proceedings under the Family Courts Act the parties do not have the benefit of being represented by any counsel. They are lay persons. They do not know how and in what manner evidence is recorded in court. Therefore, an onerous duty is casts upon the presiding officer of the Family Court as well as the counselor attached to the Family Court to properly advise the parties and inform them that in what manner evidence has to be recorded. This Court in MAT App. No.02 of 2009 and Crl. Rev. P. No.67 of 2008 has given certain directions which need no repetition.
In the present case the wife was to lead evidence only on the issue of grant of maintenance for herself and her child. In the other case being T.S.(RCR) No.145 of 2008 the onus was on the husband to prove that the wife had deserted him. Nobody explained either to the wife or the husband that both the cases had been taken up together and that the evidence recorded in one case would be read in the other case.
We have gone through the entire order sheet but find that there is no such order on the fact. What is even more surprising is that there is no cross examination to any of the witnesses. In MAT App. No.02 of 2009 and Crl. Rev. P. No.67 of 2008 we have clearly set out the importance of cross examination and if parties are not given opportunity to cross examine the other side or its witnesses then it is impossible to extract the truth.
It is true that the Family Court can devise its own procedure but this procedure must be a procedure which follows the rules of natural justice. The Family Court and the counselor attached to the Family Court are duty bound to explain to the parties what procedure they are following so that the parties are aware of how they are to proceed in the matter. In case parties are represented by any counsel the Family Court may not explain the procedure but if they are not represented by any counsel then the Family Court or the counselor attached to the Family Court must explain the procedure and this must be reflected in the records of the case also. In the present case the evidence led in one case has been read in the other. The person who was petitioner in one case and defendant in the other has been asked to lead evidence together in both the cases without the cases being consolidated or without any order being passed that the evidence led in one case would be read in the other.
We are constrained to observe that time and again we are finding that the Family Judge is deciding matters in a whimsical fashion without giving parties adequate opportunity of putting forth their cases. We would like to make it clear that though the Family Court is not to function like a court still the rules of natural justice and the basic principles of jurisprudence must be followed. The Family Court is an adjudicatory body. It may not follow the strict procedure of the CPC or the Evidence Act but its procedure must be according to the rules of natural justice and must be a procedure which has been explained to and understood by the parties. In the present case no proper procedure was followed."
It is an admitted position that the observation made by the Division Bench of this Court in the case of Soma Rani Das v. Pradip Das, reported in 2014 TLR 27 has not been followed. Therefore, the judgment and order dated 30.04.2014 passed by learned Judge, Family Court in case No.T.S.(Divorce) 234 of 2014 is set aside.
The case is remanded back to the learned Judge, Family Court for deciding afresh after affording opportunity to both side to adduce evidence following the principles laid down in Soma Rani Das(supra) and to dispose the case positively within six months from the date of receipt of the case records.
Parties are directed to appear before the learned Judge, Family Court on 20.03.2017.
The appeal accordingly stands disposed of.
Send back the L.C. records along with a copy of this judgment.