Kerala High Court
Moydeen vs Jasheera on 10 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942
OP (FC).No.162 OF 2021
AGAINST THE ORDER IN IA NOS.6,7,8 AND 9/2021 IN OP 192/2017,
194/2017, 438/2018 AND MC 300/2018 OF FAMILY COURT, TIRUR
DATED 24/2/2021
PETITIONER:
MOYDEEN
AGED 39 YEARS
(ALIAS MOIDEEN) S/O. BAVA, VATTAMKANDATHIL
HOUSE, NATYAMANGALAM, P.O. CHUNDAPATTA, VIA
KULUKALLUR, KULUKALLUR VILLAGE, PATTAMBI TALUK,
PALAKKAD DISTRICT 679 337.
BY ADVS.
SMT.M.SHAJNA
SRI.K.M.FIROZ
RESPONDENTS:
1 JASHEERA
AGED 28 YEARS
D/O. BEERANKUTTY, THIRUNAVAYA KALATHIL HOUSE,
CHELLUR EAST P.O. PAZHOOR VIA KUTTIPURAM,
NADUVATTOM VILLAGE TIRUR TALUK,
MALAPPURAM DISTRICT 679 571.
OP(FC) No.162/2021
-:2:-
2 MOHAMMED MUSAMMIL,
AGED 8 YEARS
S/O. MOIDEEN,
THIRUNAVAYA KALATHIL HOUSE, CHELLUR EAST P.O.
PAZHOOR VIA KUTTIPURAM, NADUVATTOM VILLAGE
TIRUR TALUK, MALAPPURAM DISTRICT NOW RESIDING A
T VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O.
CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE,
PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.
3 BAVA,
VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O.
CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE,
PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.
4 SULAIKA,
VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O.
CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE,
PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.
R1 BY ADV. SRI.JAMSHEED HAFIZ
R1 BY ADV. SMT.K.K.NESNA
R3-4 BY ADV. SRI.JACOB E SIMON
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(FC) No.162/2021
-:3:-
J U D G M E N T
Dated this the 10th day of March, 2021
Dr.Kauser Edappagath, J.
The petitioner in this Original petition filed under Article 227
of the Constitution of India challenges Ext.P11 common order
dated 24/2/2021 passed by the Family Court, Tirur dismissing four
petitions (Exts.P7 to P10) filed by him to issue summons to
additional witness, receive additional documents, to send a
document to handwriting expert and to accept additional witness
list.
2. The wife of the petitioner instituted three cases
against him before the Court below: OP No.192/2017 for recovery
of ornaments, money and past maintenance, OP No.194/2017 for
dissolution of marriage and MC No.300/2018 for maintenance.
The petitioner filed OP No.438/2018 against his wife, who is the
1st respondent, for restitution of conjugal rights. All the cases
were jointly tried. The evidence on the side of the respondent
was completed. PWs 1 to 4 were examined. When the matter
OP(FC) No.162/2021
was posted for the evidence of the petitioner, he filed four
applications: IA No. 6/2021 (Ext.P7) to send the handwriting in a
calendar to a handwriting expert, IA No.7/2021 (Ext.P8) to issue
summons to a witness to produce the document and to examine
her, IA No.8/2021 (Ext.P9) to receive additional documents and IA
No.9/2021 (Ext.P10) to receive additional witness. The Court
below by a common order (Ext.P11) dismissed all these petitions.
Challenging the said order, this Original Petition has been filed.
3. Heard both sides.
4. In OP No.192/2017, it is alleged that, the petitioner
ousted his wife/first respondent from the matrimonial home in
2015 and she was not given a single penny as maintenance since
February, 2015. Failure to perform marital obligations by the
petitioner including the period from 2015 was also taken as a
ground for seeking dissolution of marriage. According to the
petitioner, in the calendar kept at the matrimonial home, the first
respondent has made certain entries in her own handwriting after
February, 2015 and it would show that she was not ousted from
the matrimonial home in February, 2015 as alleged and that she
was residing therein after the said period. When the wife was
OP(FC) No.162/2021
examined as PW1, the calendar and the entries allegedly made
by her in it were shown to her in cross-examination. But she
denied her handwriting. It was in these circumstances the
petition has been filed to send the handwriting of the first
respondent allegedly found in the calendar to a handwriting
expert to make a comparison with her admitted handwriting.
Apart from that, according to the petitioner, the respondent has
falsely deposed in her cross-examination regarding his
participation in the marriage of one Misna and to disprove the
same, he wanted to summon the said Misna and to direct her to
produce the wedding album. It was for the said purpose Ext.P8
petition was filed. Exts.P9 and P10 were filed to receive certain
additional documents as well as to receive list of additional
witnesses.
5. The first respondent moved this Court for speedy
disposal of the above cases and this Court directed the Family
Court to dispose of the matter before 28/2/2021 as evident from
Ext.P4. The Court below dismissed Exts.P7 to P10 applications on
the ground that those were filed belatedly and if those petitions
were allowed, the matter could not be disposed of within the time
OP(FC) No.162/2021
frame fixed by the High Court. The Court below also observed
that the documents produced are not relevant. It is true that the
documents were not produced before the evidence started. But it
were produced before the commencement of evidence of the
petitioner. It is pertinent to note that the calendar in question
was confronted to the first respondent for the first time when she
was put in box. Such course is permissible under law. Therefore,
the petitioner cannot be blamed for non production of the
document earlier. The definite case of the first respondent is that
she was ousted from the matrimonial home in February, 2015.
According to the petitioner, the said case could be disproved if
the handwriting in the calendar is proved. Adducing evidence in
support of the case of party to the litigation is a valuable right
and the denial of the said right would amount to denial of fair
trial. Fair trial includes fair and proper opportunity allowed by law
to prove the case. It is seen from the records that during the
evidence of the first respondent, she denied various facts. It was
in that circumstances, acceptance of documents and witness list
were necessitated. The petitioner states that based on the
evidence adduced by the first respondent, it becomes necessary
OP(FC) No.162/2021
to examine the witnesses mentioned in the list. When a party to a
litigation wants to adduce evidence in a particular manner in
accordance with law, the Court of law cannot shut down the said
evidence unless it is found to be totally unnecessary. For the
simple reason that the time bound disposal of the case was
directed by this Court, the petitioner cannot be denied an
opportunity to adduce evidence to prove his case. We are of the
view that the Family Court erred in shutting down the evidence
and an opportunity has to be given to the petitioner to adduce
the evidence. The learned counsel for the petitioner submitted
that document can be sent to a private expert so that the delay
can be avoided.
6. For the reasons stated above, we hold that the Court
below committed illegality in dismissing Exts.P7 to P10
applications. Hence, Ext.P11 order is liable to be set aside.
In the result, this original petition is allowed. Ext.P11 order
is set aside. Exts.P7 to P10 petitions stand allowed. The Court
below shall take appropriate steps for obtaining the opinion of a
handwriting expert from a private expert. The Court below shall
give an opportunity to the petitioner to adduce further evidence
OP(FC) No.162/2021
sought for. Thereafter, the Court below shall also give an
opportunity to the respondents to adduce further evidence, if any.
The Court below shall dispose of all the cases within three
months from the date of receipt of a copy of this judgment.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
Rp JUDGE
OP(FC) No.162/2021
APPENDIX
PETITIONER'S EXHIBITS:
OF 2017 ON THE FILES OF FAMILY COURT,
TIRUR.
EXHIBIT P1 (A) TRUE COPY OF COUNTER STATEMENT IN O.P.
NO. 192 OF 2017 ON THE FILES OF FAMILY
COURT, TIRUR.
OF 2017 ON THE FILES OF FAMILY COURT,
TIRUR.
EXHIBIT P2 (A) TRUE COPY OF COUNTER STATEMENT IN O.P.
NO. 194 OF 2017 ON THE FILES OF FAMILY
COURT, TIRUR.
OF 2018 ON THE FILES OF FAMILY COURT,
TIRUR.
EXHIBIT P3 (A) TRUE COPY OF COUNTER STATEMENT IN O.P.
NO. 438 OF 2018 ON THE FILES OF FAMILY
COURT, TIRUR.
EXHIBIT P4 TRUE COPY OF ORDER DATED 26.11.2020 IN
O.P. (F.C) NO. 394 OF 2020 PASSED BY
THE FAMILY COURT, TIRUR.
EXHIBIT P5 TRUE COPY OF DEPOSITION OF PW1 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES ON
THE FILES OF FAMILY COURT , TIRUR.
EXHIBIT P5 (A) TRUE COPY OF DEPOSITION OF PW2 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES ON
THE FILES OF FAMILY COURT , TIRUR.
OP(FC) No.162/2021
EXHIBIT P5 (B) TRUE COPY OF DEPOSITION OF PW3 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES ON
THE FILES OF FAMILY COURT , TIRUR.
EXHIBIT P6 TRUE COPY OF I.A. NO. 5 OF 2021 ON THE
FILES OF FAMILY COURT TIRUR.
EXHIBIT P6 (A) TRUE COPY OF DEPOSITION OF PW4 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES ON
THE FILES OF FAMILY COURT TIRUR.
EXHIBIT P7 TRUE COPY OF I.A. NO. 6 OF 2021 IN O.P.
NO. 192 OF 2017 AD CONTENTED CASES ON
THE FILES OF FAMILY COURT TIRUR.
EXHIBIT P7 (A) TRUE COPY OF OBJECTION IN I.A. NO. 6 OF
2021 IN O.P. NO. 192 OF 2017 AND
CONNECTED CASES ON THE FILES OF FAMILY
OCURT, TIRUR.
EXHIBIT P8 TRUE COPY OF I.A. NO. 7 OF 2021 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES
ALONG WITH WITNESS LIST ON THE FILES OF
FAMILY COURT, TIRUR.
EXHIBIT P9 TRUE COPY OF I.A. NO. 8 OF 2021 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES
ALONG WITH WITNESS LIST ON THE FILES OF
FAMILY COURT, TIRUR.
EXHIBIT P10 TRUE COPY OF I.A. NO. 9 OF 2021 IN O.P.
NO. 192 OF 2017 AND CONNECTED CASES
ALONG WITH WITNESS LIST ON THE FILES OF
FAMILY COURT, TIRUR.
EXHIBIT P10 (A) TRUE COPY OF OBJECTION IN I.A. NO. 9 OF
2021 IN O.P. NO. 192 OF 2017 AND
CONNECTED CASES ON THE FILES OF FAMILY
COURT, TIRUR.
OP(FC) No.162/2021
EXHIBIT P11 TRUE COPY OF COMMON ORDER DATED
24.02.2021 IN I.A. NO. 6 OF 2021, I.A.
NO. 7 OF 2021 , I.A. NO. 8 OF 2021 AND
I.A. NO. 9 OF 2021 IN O.P. NO. 192 OF
2017 PASSED BY THE FAMILY COURT, TIRUR.
