Meena Devi vs Vijay Kumar
2013 Latest Caselaw 4545 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                       Decided on: 01.10.2013
+      FAO NO.67/2013 & CMs 2427-28/2013

       MEENA DEVI                                           ..... Appellant
                             Through:    Mr.Vinod Wadhwa, Advocate.

                             versus

       VIJAY KUMAR                                    ..... Respondent

                             Through:     Mr. M.L.Yadav, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE S.RAVINDRA BHAT(Open Court)

1. Issue notice. Mr.Yadav, accepts notice. With the consent of

the learned counsel, the appeal was heard finally. The grievance of

the appellant is that the impugned judgment and order of the Family

Court dated 18.9.2012 decreeing the respondent/husband's petition

for dissolution of the marriage on the ground of cruelty, was made

without appreciating the materials on record.

2. The marriage between the parties was solemnized on 16.7.1986

and a son was born from the said wedlock in 1987.

3. The husband preferred the petition in 2010 for divorce on the

grounds of cruelty and desertion, levelling several allegations.

4. The appellant/wife despite grant of opportunities did not file the

defence/written statement to the petition in time. It was filed

belatedly. There is some dispute about the nature of delay. The

appellant asserts that the delay was of five months, whereas the

judgment records that the delay was of nearly a year. In any event,

what is relevant is that the absence of the defence led the Family

Court to allude to Order 8 Rule 1 and Rule 5 (2) of the CPC in the

judgment and proceed on the basis that in the absence of a written

statement or defence, the evidence led by the wife could not be taken

into consideration and that only the evidence that could be

appreciated was that led by the petitioner/husband.

5. The relevant discussion in this regard of the Family Court is

extracted below:-

"(6) However, this Court did not think it proper to pass a decree without taking on record the evidence of the petitioner. Hence the matter was fixed for recording evidence in view of Order VII Rule 5(2) CPC and the petitioner has examined two witnesses i.e. himself as PW-1 and his son Shekhar as PW-2. Although there is no written statement of the respondent on record but she insisted upon her examination and her statement was also recorded and she examined herself as RW-1. However, since there is no defence of the respondent on record, her evidence has no bearing and the same cannot form part of the judgment. The Court, however, can rely on that part of testimony of

respondent where she has admitted the documents and case of the petitioner as she has disallowed to put up her defence only."

6. It is argued by the learned counsel for the appellant that the

impugned judgment is in error of law. The learned counsel

underlined that once a party is permitted to lead evidence, which deals

with the issues and around which the controversy between the parties

arise, the Court cannot ignore it or as in the circumstances of the case,

resort to a selective appreciation, choosing to rely upon admissions

and rejecting the explanations or what is deemed to be adverse against

the other party.

7. The learned counsel for the respondent/husband on the other

hand urged that the wife was not interested in filing her defence the

proceedings as is evident from the delay of more than one year in

filing the written statement. Consequently, the Court would have

been justified in exercising its powers under Order VIII Rule 10 CPC

and forthwith decreeing the suit. Nevertheless, the Family Court did

not choose such a drastic action and proceeded, instead, to take into

consideration the pleadings, admissions as well as the evidence of the

party who was under duty to prove the allegations i.e. the respondent

before decreeing the suit and no fault could be found with the

impugned order.

8. This Court has carefully considered the submissions.

9. The impugned order would reveal that although the Family

Court considered the wife's evidence, only those which pertain to

admissions vis-a-vis certain facts contended by the

respondent/husband were given credence and taken into account; the

rest were discarded. This Court is of the opinion that the Family

Court perhaps might have been justified if it had adopted a uniform

approach by either taking into consideration the entire evidence of the

appellant or rejecting it in its entirety. Since the Court did not permit

the defence to be brought on record, that action, undoubtedly, has

become final. However, the selective reading of the appellant's

evidence, as was done in the circumstances of this case, in the opinion

of this Court, is entirely unjustified and appears to be unfounded in

law. Although, provisions of Code of Civil Procedure (CPC) in its

letter do not apply to the proceedings under the Family Courts Act,

1984, nevertheless, they are viewed as embodying principles of

procedure which ought largely to guide the conduct of proceedings

under the said Act. No doubt the Family Courts are entitled to evolve

their own procedure to meet the peculiar challenges which arise in

each proceeding, yet they would be guided by the principles

embodied in the Code.

10. One such principle finds expression under Order 18 Rule 2

which provides that both the parties have an equal right in addressing

the Court after leading their respective evidence. Although, this Court

does not wish to pronounce on this aspect of the case finally, what is

discernible is that if the Family Court adopts a particular approach

vis-à-vis one party, the same approach should be adopted vis-a-vis the

other party. In the facts of the present case, the Family Court

examined evidence of the respondent/husband in its entirety,

however, the same yardstick was not applied in the case of the

appellant/wife, whose evidence had been relied upon selectively and

only to the extent it admitted the case of the respondent/husband. This

to the Court's mind has not only resulted in inequality but also

palpable injustice.

11. In view of the above conclusion, the impugned judgment and

order is hereby set aside.

12. The Family Court shall hear the parties afresh and decide the

matter after taking into consideration the entire material and pleadings

before it.

13. The parties are directed to be present in Family Court on 10 th

October, 2013. The Family Court shall endeavour to complete its

proceedings and render its judgment preferably within four months

from today.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) OCTOBER 01, 2013 RN