Kerala High Court
Anuja Rajam Cherian vs Suresh Samuel on 3 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
OP (FC).No.336 OF 2020
AGAINST THE ORDER in I.A No.3970/2019 IN OP 1673/2018 DATED 10-03-
2020 OF FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER/PETITIONER IN O.P:
ANUJA RAJAM CHERIAN
AGED 43 YEARS
D/O. CHERIAN VARGHESE, SANKHPARAMBIL, LN-H/4, LEKSHMI
NAGAR, PATTOM PALACE P.O., THIRUVANANTHAPURAM
DISTRICT, PIN-695004.
BY ADVS.
SRI.K.SANEESH KUMAR
SMT.KOKILA BABU
SMT.V.B.SANTHINI
RESPONDENTS/COUNTER PETITIONER IN O.P:
SURESH SAMUEL,
AGED 46 YEARS, S/O. SAMUEL DANIEL, HAVING PERMANENT
RESIDENCE AT KIZHAKKETHALACKAL, JUSTICE K.K. MATHEW
LANE, SRM ROAD, ERNAKULAM-682018, FROM
KIZHAKKETHALACKAL, MATTOM SOUTH MAVELIKARA, ALAPPUZHA
DISTRICT-690103, NOW RESIDING AT DUBAI, KHALIFA AND
MOHD IBNAI OBAID SAEED, FLAT NO.301, P.O. BOX-7, AL-
SATWA, DUBAI, REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, MR. VISHNU S.R., AGED 26 YEARS, S/O.
SIVADASAN NAIR T., T.C.28/583, KARUMPALI HOUSE,
KAITHAMUKKU P.O., THIRUVANANTHAPURAM DISTRICT-695024.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.336 OF 2020
2
JUDGMENT
Dated this the 3rd day of February 2021
C.S.DIAS,J.
The original petition is filed, under Article 227 of
the Constitution of India, to set aside the order dated
10.3.2020 in I.A 3970/2019(Ext.P9) in O.P.
No.1673/2018 (Ext.P1) of the Family Court,
Thiruvananthapuram.
2. The petitioner had filed ExtP1 before the
Family Court, seeking a decree for recovery of money
and gold ornaments or its value thereof from the
respondent - her husband. The petitioner had also
filed M.C No.566/2017 against the respondent
seeking an order of maintenance for herself and her
children. The respondent had filed O.P.No.1112/2018
(Ext.P3) seeking a decree of divorce, to dissolve his
marriage with the petitioner.
OP (FC).No.336 OF 2020
3. The Family Court appointed an Advocate
Commissioner to record the evidence in Exts.P1 and
P3 original petitions. The Advocate Commissioner
recorded the cross-examination of 34 pages in
Ext.P1 original petition. At the said juncture, the
respondent filed I.A 3970/2019 (Ext.P7) seeking for
the joint trial of Ext.P3 with Ext.P1. Although the
petitioner filed Ext.P8 written objection, the Family
Court by Ext.P9 impugned order allowed the joint trial
of Exts.P1 and P3 original petitions.
4. Aggrieved by the said order, this original
petition is filed.
5. Heard Sri.Saneesh Kumar, the learned
counsel appearing for the petitioner. Even though
service of notice is complete on the respondent,
there is no appearance for the respondent.
6. The sole point that arises for consideration
in this original petition is whether Ext.P9 order is
justifiable or not?
OP (FC).No.336 OF 2020
7. It is not disputed that Exts.P1 and P3
original petitions are between the petitioner and
respondent - husband and wife. It is a fact that
although the Advocate Commissioner was appointed
to record the evidence in Exts.P1 and P3, the
Advocate Commissioner recorded the cross-
examination of the petitioner only in Ext.P1. Noting
the fact that joint trial was not ordered in the two
cases, the respondent filed Ext.P7 application, which
was allowed by the impugned order. The Family
Court, taking into consideration the convenience of
the parties, the costs involved, to save judicial time,
multiplicity of proceedings and conflict of decision,
ordered joint trial of Exts.P1 and P3. The Family
Court also safeguarded the interest of the petitioner
by directing the petitioner to file an additional proof
affidavit in lieu of the petitioner's evidence in respect
of Ext.P3 original petition and the petitioner to be
cross-examined in respect of the said case.
OP (FC).No.336 OF 2020
8. The learned counsel for the petitioner
submitted that in light of the opinion expressed by
this Court that there is no illegality in Ext.P9 order,
the petitioner would be satisfied if MC No.566/2017
filed by the petitioner pending before the same Court
is also consolidated and jointly tried along with
Exts.P1 and P3 original petitions.
9. In the totality of the facts and circumstances
of the case, considering that Exts.P1 and P2 and MC
No. 566/2017 are between the same parties, we are of
the definite opinion that it would meet the ends of
justice, save judicial time, minimise the costs and also
be convenient to both parties , if all the three cases
are consolidated, jointly tried and decided. We do not
find any illegality or infirmity in Ext.P9 order passed
by the Family Court, warranting interference by this
Court under Article 227 of the Constitution of India.
In the result, we dispose of this original petition
by directing the Family Court, Thiruvananthapuram to
OP (FC).No.336 OF 2020
consolidate and jointly try O.P. Nos.1673/2018,
1112/2018 and MC 566/2017, in accordance with law,
as expeditiously as possible, at any rate, within a
period of six months from today. We make it clear
that the Family Court shall permit the petitioner to
file additional proof affidavit in-lieu of her chief
examination in OP Nos 1112/2018 and MC 566/2017
and the respondent/the learned counsel for the
respondent be permitted to cross-examine the
petitioner in continuation with the cross-examination
already recorded by the Advocate Commissioner in
Ext.P1.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
MA/04.02.2021
JUDGE
/True copy/
OP (FC).No.336 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE PHOTOCOPY OF THE ORIGINAL
PETITION IE. OP 1673/2018 FILED BY THE
PETITIONER DATED 18/07/2018.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE WRITTEN
STATEMENT FILED BY THE RESPONDENT
THROUGH HIS POWER OF ATTORNEY DATED
01/08/2019.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE ORIGINAL
PETITION IE. OP 1112/2018, FILED FOR
DIVORCE BY THE RESPONDENT BEFORE THE
FAMILY COURT, THIRUVANANTHAPURAM DATED
04/05/2018.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE WRITTEN
STATEMENT FILED BY THE PETITIONER IN
OP 1112/2018 DATED 13/03/2019.
EXHIBIT P5 A TRUE COPY OF THE PROOF AFFIDAVIT
ALONG WITH THE CHIEF EXAMINATION
SUBMITTED BY THE PETITIONER ON
09/08/2019 IN OP 1673/2018.
EXHIBIT P6 A TRUE PHOTOCOPY OF THE DEPOSITION
RENDERED BY THE PETITIONER IN OP
1673/2018 DATED 16/12/2019.
EXHIBIT P7 A TRUE COPY OF THE IA 3970/2019 FILED
BY THE RESPONDENT DATED 08/11/2019
SEEKING JOINT TRIAL,
EXHIBIT P8 A TRUE PHOTOCOPY OF THE OBJECTION IN
IA 3970/2019 FILED BY THE PETITIONER
DATED 12/12/2019.
EXHIBIT P9 A TRUE COPY OF ORDER PASSED IN IA
3970/2019 DATED 10/03/2020 BY THE
FAMILY COURT, THIRUVANANTHAPURAM.
