Dr. Akshay S/O. Navalkishor ... vs Dr. Arti W/O. Akshay Lakhotiya
2016 Latest Caselaw 1034 Bom

                                                  1                            Jg.wp4446.15.odt




                                                                                        
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                
                            : NAGPUR BENCH : NAGPUR.

                             WRIT PETITION NO. 4446 OF 2015

     Dr. Akshay S/o Navalkishor Lakhotiya 




                                                               
     Aged 30 years, Occ. : Doctor,
     R/o "Navkiran", 41, Toshniwal Layout, 
     Near National Highway No. 6, Akola, 
     Tehsil & District Akola.                                                       .... Petitioner




                                                
           // Versus // 
                             
     Dr. Arti W/o Akshay Lakhotiya 
     Aged about 31 years, Occ. : Doctor,
     R/o. C/o. Subhash Heda, Advocate, 
                            
     "Navrang Park" Apartment, 
     Near Navrang Society, 
     New Radhakisan Plot, Akola, 
     Tehsil & District Akola.                                                   .... Respondent
     ----------------------------------------------------------------------------------------------
      


     Shri V. S. Kukday, Advocate for the petitioner 
     Shri R. V. Shiralkar, Advocate for the respondent    
   



                                             CORAM :  PRASANNA B. VARALE, J.

                                             DATE    :   31-3-2016.





     ORAL JUDGMENT  

Heard Shri Kukday, learned counsel for the petitioner

and Shri Shiralkar, learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

3. By the present petition, the petitioner challenges the

order passed by the learned Judge, Family Court, Akola dated

9-7-2015 allowing the application partly seeking production of the

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documents.

4. Few facts are referred to giving the backdrop of the

controversy raised in the petition.

The petitioner and the respondent, both are well qualified

persons. The petitioner and the respondent, after completing their

education in the medicine field, started practice as Doctors. The

marriage between the petitioner and the respondent was solemnized

on 1-2-2013. It seems that within a short span of the matrimonial

life, the petitioner and the respondent were unable to go along with

each other to keep the matrimonial tie intact, the same resulted in

filing the petition by the petitioner before the Family Court under

Section 12 read with Section 13(i-a)(v) of the Hindu Marriage Act,

1955. On 15-12-2014, evidence of the petitioner was recorded. On

19-3-2015, the petitioner examined his witness and closed his

evidence. On 2-4-2015, evidence of the respondent was recorded

and the evidence was completed on 10-6-2015. An application was

filed before the learned Judge, Family Court seeking permission to

file documents as per the list attached. The list included 121

documents. Loosely, 50% of the documents are the photographs and

the rest of the documents are copy of bills, vouchers etc. The

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learned Judge, Family Court by order dated 9-7-2015 allowed the

application partly. The learned Judge permitted to place on record

the documents at Serial No. 2 to 10, 22 to 24, 40 to 51, 53 to 55, 58,

59 and 60 to 72 which are photographs and certain bills whereas

rejected the prayer in respect of the documents which are mostly the

certified copies of sale deed etc. and referred to as Sr. No. 77, 78, 79

to 81, 82 to 84, 85, 87, 88 to 90, 96, 97, 99, 101, 102, 103, 105,

106, 108, 109, 111 and 112 by observing that these documents are

completely irrelevant to the matter in hand.

5. Shri Kukday, learned counsel for the petitioner

vehemently submitted that the learned Judge committed a grave

error in allowing the application partly. The first limb of submissions

of Shri Kukday, learned counsel was the application was moved at

the instance of the father of the respondent who was for some time

representing the respondent as a lawyer and on 15-6-2015 withdrew

his power from the matter as a counsel for the respondent. On the

very day, i.e. on 15-6-2015, the application was filed seeking

permission to file documents at the instance of the father of the

respondent changing his stance in the application as a witness for the

respondent. Shri Kukday, learned counsel then submitted that the

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learned Judge though in clear words observed that there was

absolutely no reason put forward in the application seeking

production of the documents and as majority of these documents

were in the custody of the respondent's witness prior to filing of

the written statement. Instead of these observation, the learned

Judge permitted the documents to place on record only on the

ground that the petitioner has a chance to cross-examine the

respondent's witness on the said documents. Shri Kukday, learned

counsel then submitted that in view of the provisions of Order VIII

Rule 1 of the Code of Civil Procedure, documents can be placed on

record by the defendant with leave of the Court. It is the submission

of Shri Kukday, learned counsel that if though not admitting but

assuming that if it was an attempt through the respondent, then the

Court could have proceeded on that application on that backdrop,

but the learned Judge grossly erred in allowing the application partly

thereby permitting the documents to place on record at the instance

of the witness of the respondent. Shri Kukday then submitted that

such a course adopted by the learned Judge, Family Court is neither

acceptable nor sustainable. Shri Kukday, learned counsel thus, on

these grounds prayed for setting aside the order passed by the

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learned Judge, Family Court impugned in the petition.

6. Per contra, Shri Shiralkar, learned counsel for the

respondent submitted that no error is committed by the learned

Judge, Family Court in arriving at the conclusion. Shri Shiralkar,

learned counsel submitted that it does not lie in the mouth of the

petitioner to challenge the order passed by the learned Judge, Family

Court when the petitioner himself had approached the learned

Judge, Family Court seeking permission to file the documents on

record and the learned Judge, Family Court resorted to the

provisions of Section 14 of the Family Courts Act, 1984 and allowed

the application of the petitioner. Shri Shiralkar, learned counsel

vehemently submitted that the learned Judge, Family Court, in view

of Section 14 of the Family Courts Act is entitled to accept and

receive any report, statement and document as evidence if in the

opinion of the learned Judge, Family Court it assist to deal effectively

with the dispute. Shri Shiralkar, learned counsel submitted that as

the learned Judge, Family Court thought it fit that the documents

may assist the Court to appreciate and decide the dispute, the

learned Judge permitted the documents to be placed on record and

allowed the application partly.

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7. On hearing the learned counsel at length and on going

through the material placed on record as well as the relevant

provisions referred to by the parties, in my opinion, the order passed

by the learned Judge, Family Court is unsustainable. The very

objection raised by Shri Kukday, learned counsel for the petitioner to

the approach of the applicant needs consideration. It is not in

dispute that the father of the respondent was representing her as a

counsel for some time i.e. till 15-6-2015. On the very day, he

withdrew himself from the matter as the counsel and presented

application before the learned Judge, Family Court as a witness. It

would be interesting to refer to the said application. A copy of the

same is placed on record at Annexure - 3. The application starts

with the words, "the respondent's witness wants to file some

documents on record in support of his evidence". The application

concludes with signature of the counsel for the respondent. There is

absolutely nothing in the application, lease to say, any reason

prompting the witness of the respondent to file the said application

seeking permission to place documents on record. It is interesting to

note that along with application, list of 121 documents is submitted.

These documents include the photographs in the marriage ceremony,

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the photographs of presenting gifts articles by the relatives,

invitation cards printed at the instance of the family, the bills of

payment towards purchase of various articles including jewellery,

ornaments, the bills of service provider agency like decoration,

flowers etc. There is a considerable merit in the submission of

Shri Kukday that when the learned Judge in clear words observed

that no reason was coming forward in the application seeking the

permission to place documents on record, as well, the undisputed

fact that the majority of the documents were in the custody of the

respondent's witness prior to filing of the written statement, in spite

of observing these facts, the learned Judge allowed the application

assigning no reason to show that how the learned Judge thought it

fit that these documents would assist the Court in appreciation or in

decision of the matter as per the provisions of Section 14 of the

Family Courts Act. The only reason assigned by the learned Judge is

the petitioner has a chance to cross-examine the respondent's

witness. There is absolutely no explanation either in the application

or in the context of the present petition on the aspect that how the

applicant who claims to be the respondent's witness was filing the

application seeking permission to file documents can further the

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cause of the respondent for stepping in shoes of the respondent.

8. It is also interesting to note the manner in which the

application was filed. At the cost of repetition, the application was

opening with the words that the respondent's witness wants to file

some documents on record in support of his evidence and concluded

that the application was moved by the respondent. There is nothing

on record to show how the course adopted by the respondent's

witness was permissible.

9. There is also merit in the submission of Shri Kukday,

learned counsel that if assuming, it was a request for placing the

documents through the respondent, then there is a scope to say that

the learned Judge to achieve the object of better appreciation and

decision permitted the documents to place on record. In the present

case, the application is not by the respondent but it is moved by the

respondent's witness. There is also merit in the submission that all

these documents which were sought to be placed on record at a later

stage were the documents in the custody of the respondent and no

reason is assigned to state what prevented the respondent to place

these documents on record. Considering all these aspects, in my

opinion, the learned counsel for the petitioner has made out the

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case. The order impugned in the petition is unsustainable. In the

result, the writ petition is allowed. The order passed by the learned

Judge, Family Court impugned in the petition is quashed and set

aside.

10. At this stage, Shri Shiralkar, learned counsel for the

respondent submits that as the parties are well qualified and the

proceeding is pending for divorce since the year 2014, the learned

Judge, Family Court, Akola be directed to decide the proceeding

within stipulated time frame. I am afraid that fixing such a time

frame would be appropriate considering the fact that both the parties

are well qualified and practicing medical professional, I hope and

trust that the learned Judge, Family Court, Akola would decide the

proceeding as early as possible.

JUDGE

wasnik