Kerala High Court
Harish M vs Smitha K on 16 April, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 16TH DAY OF APRIL 2024/27TH CHAITHRA, 1946
OP (FC) NO. 267 OF 2024
AGAINST THE ORDER IN IA.2& 3 OF 2024 IN OP NO.494 OF
2024 OF FAMILY COURT, OTTAPPALAM
PETITIONER/PETITIONER/PETITONER:
HARISH M.,
AGED 56 YEARS,
S/o.SREEKUMARAN,
KISMET, ELAPULLY,
PALAKKAD DISTRICT, PIN-678622
BY ADVS.
V.M.KRISHNAKUMAR
P.R.REENA
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 SMITHA K.,
AGED 51,
D/o.LATE SUKUMARAN NAIR,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN-679516
2 SUKUMARI,
AGED 75,
W/O LATE SUKUMARAN NAIR,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN 679516
OP(FC) No.267/2024
:2:
3 VIJAYARAGHAVAN,
S/o.NARAYANAN MENON,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN-679516
THIS OP (FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 16.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(FC) No.267/2024
:3:
N. NAGARESH & P.M. MANOJ, JJ.
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O.P. (FC) No.267 of 2024
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Dated this the 16th day of April, 2024
JUDGMENT
~~~~~~~~~ Nagaresh, J.
The petitioner, who is the husband of the 1st respondent, has filed this OP(FC) seeking to direct the Family Court, Ottapalam to pass orders on Exts.P6 and P7 IAs within a time fixed by this Court and before proceeding with the trial in OP. No.288/2021 and OP. No.494/2022 of the Family Court, Ottapalam.
2. The 1st respondent-wife filed Ext.P1 OP No.288/2021 in the Family Court, Ottapalam seeking divorce. The petitioner filed Ext.P2 objection to the OP.
3. The petitioner filed Ext.P3 OP No.1212/2021 in the Family Court, Palakkad for return of the amount paid by OP(FC) No.267/2024 :4: the petitioner to the 1st respondent, her brother and father- in-law. The said OP No.1212/2021 was transferred to the Family Court, Ottapalam and re-numbered as OP No.494/2022. The 1st respondent has filed objection to Ext.P3 OP No.494/2022.
4. The petitioner states that Ext.P3 OP for return of amount was posted before the Family Court on 11.10.2023. The Family Court adjourned the case to 07.12.2023. On 07.12.2023, when the case was taken up, the petitioner submitted that a copy of the counter affidavit is not received. However, the Family Court, without taking into account the said submission, listed Ext.P3 OP for trial to be held on 23.03.2024.
5. The petitioner states that he was served with a copy of the counter affidavit only on 23.03.2024. The Family Court, even without any application made by the parties, ordered joint trial of Exts.P1 and P3 OPs. On 08.04.2024, the petitioner filed IA No.1/2024 for removing the case from the list, IA No.2/2024 for receiving documents relating to OP(FC) No.267/2024 :5: transfer of amount and IA No.3/2024 to receive witness list.
6. On 11.04.2024, the Family Court dismissed IA No.1/2024 without assigning any reason. IA Nos.2 and 3 of 2024 were posted for objection of the respondents to 12.04.2024. On 12.04.2024, the Family Court allowed IA No.4/2024 filed by the 1 st respondent to receive certain documents. The petitioner was not even given an opportunity to file objection. The Family Court accepted the proof affidavit of the 1st respondent also on 12.04.2024.
7. The petitioner states that the Family Court has not passed orders on IA Nos.2 and 3 of 2024. The petitioner has to cross-examine witnesses. Effective cross- examination can be done only after documents are accepted. Without accepting the documents, the case now stands posted to 17.04.2024. The petitioner therefore seeks to direct the Family Court to give sufficient and effective opportunity to cross-examine witnesses after accepting the documents produced by the petitioner. OP(FC) No.267/2024 :6:
8. I have heard the learned counsel for the petitioner.
9. Ext.P3 OP No.494/2022 is filed by the petitioner for return of the amount. A counter affidavit to the OP was filed by the 1st respondent only on 23.03.2024. On that day only, the petitioner realised that the 1st respondent has denied the receipt of money sent by the petitioner from abroad through money exchange institution. In view of the denial by the 1st respondent, the petitioner is forced to adduce documents and examine witnesses to prove payment of money. The petitioner therefore filed IA No.2/2024 for receiving documents and IA No.3/2024 to receive witness list. Without passing any orders, the case is posted to 17.04.2024 for trial. The petitioner states that unless the documents and list of witnesses are accepted, the petitioner will be put to prejudice.
10. It is to be noted that the Family Court has not rejected IA Nos.2 and 3 of 2024 filed by the petitioner. The IAs stand posted to 17.04.2024. It cannot be presumed that OP(FC) No.267/2024 :7: the Family Court will reject the IAs filed by the petitioner. Therefore, no interference is warranted in that regard, at this stage of the proceedings.
11. Even if the Family Court rejects the interim application filed by the petitioner, the petitioner has opportunity to challenge the orders passed in the IA and if final judgment is delivered, the petitioner can challenge the final judgment. The original petitions filed by the petitioner and the 1st respondent are of the year 2021. Those petitions will have to be disposed of expeditiously without further delay.
For all the above facts, we find no justification in granting any relief to the petitioner in this OP(FC). The OP(FC) is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE Sd/-
P.M. MANOJ, JUDGE aks/17.04.2024 OP(FC) No.267/2024 :8: APPENDIX OF O.P.(FC) No.267/2024 PETITIONER'S EXHIBITS:
Exhibit-P1 TRUE COPY OF OP NO.288/2021 DATED 20.04.2021 FILED BEFORE THE FAMILIY COURT, OTTAPPALAM.
Exhibit-P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN OP NO.288 OF 2021 BEFORE HTE FAMILY COURT OTTAPALAM DATED 11.10.2023.
Exhibit-P3 TRUE COPY OF OP NO.1212/221 FILED BEFORE THE FAMILY COURT PALAKKAD WHICH WAS TRANSFERRED TO OTTAPPALAM FAMILY COURT AND RENUMBERED AS OP.494/2022.
Exhibit-P4 TRUE COPY OF OBJECTION FILED BY THE RESPONDENT IN OP NO.494 OF 2022 BEFORE THE FAMILY COURT OTTAPPALAM DATED 13.10.2023.
Exhibit-P5 TRUE COPY OF I.A NO.1/2024 IN OP NO.494/2022 DATED 06.4.224 FILED BEFORE THE FAMILY COURT, OTTAPPALAM. Exhibit-P6 TRUE COPY OF I.A.NO.2/2024 IN OP NO.494/2022 DATED 06.04.2024 FILED BEFORE THE FAMILY COURT.
Exhibit-P7 TRUE COPY OF I.A.No.3 OF 2024 IN OP No.494/2022 DATED 06.04.2024 FILED BEFORE THE FAMILY COURT, OTTAPPALAM. Exhibit-P8 TRUE COPY OF I.A No.4 OF 2024 IN OP No.494/2024 DATED 12.04.2024 FILED BEFORE THE FAMILY COURT, OTTAPPALAM.