T.Anjana vs J.A.Jayesh Jayaram
2022 Latest Caselaw 4050 Ker

       IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
    THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                             &
       THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA,
                         1944
                OP (FC) NO. 127 OF 2022
     AGAINST THE JUDGMENT IN OP 85/2016 OF FAMILY
                   COURT,TRIVANDRUM
PETITIONER/S:

         T.ANJANA, AGED 34 YEARS,
         MULLOOR HOUSE, THIRUVALLAM,
         THIRUVANANTHAPURAM.
         BY ADV M.R.RAJESH


RESPONDENT/S:

         J.A.JAYESH JAYARAM,
         KEEZHEVILAYIL VEEDU, MANNAM NAGAR,
         PACHALLOOR, THIRUVALLAM P.O, PIN-695 027.
         BY ADV SHAHNA KARTHIKEYAN


THIS ORIGINAL PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 30/3/2022, ALONG WITH WP(C).NO.6735/2022,
THE COURT ON 07.04.2022 DELIVERED THE FOLLOWING:
        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
    THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                             &
       THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
 THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                 WP(C) NO. 6735 OF 2022
PETITIONER/S:

         T.ANJANA, AGED 34 YEARS,
         MULLOOR HOUSE, THIRUVALLAM P.O.,
         THIRUVANANTHAPURAM-695 027.
         BY ADV M.R.RAJESH


RESPONDENT/S:

   1     THE LOCAL REGISTRAR OF MARRIAGES (COMMON),
         & SECRETARY, VELLARADA GRAMA PANCHAYATH,
         PANACHAMOODU P.O., THIRUVANANTHAPURAM,
         PIN-695 505.


   2     J.A.JAYESH JAYARAM, KEEZHEVILAYIL VEEDU,
         MANNAM NAGAR, PACHALLOOR, THIRUVALLOM P.O.,
         PIN-695 027.
         BY ADVS.
         SHAHNA KARTHIKEYAN
         J.S.AJITHKUMAR


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION      ON    30/3/2022,     ALONG     WITH
OP(FC).127/2022, THE COURT ON 07.04.2022 DELIVERED
THE FOLLOWING:
           A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.
     ------------------------------------------------
      W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022 "C.R."
     ------------------------------------------------
           Dated this the 7th day of April, 2022

                                 JUDGMENT

A.Muhamed Mustaque, J.

These cases tell a tale of an unscrupulous

litigant who considers himself as the dominus litis,

capable of knocking down all the directions in the

judgments of this Court as well as the Apex Court in

one stroke by not pressing his petition for restitution

of conjugal rights filed before the Family Court,

Thiruvananthapuram. First, we shall advert to the facts

of the case before adverting to who is the master of

the case in the Family Court jurisdiction.

2. Anjana, the petitioner in both cases, met

J.A.Jayesh Jayaram when she went to take driving

lessons at Shivanada Motor Driving school. Their

intimacy developed, leading to the registration of

their marriage before the Local Registrar under the

Kerala Registration of Marriages (Common) Rules, 2008 W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

(hereinafter referred to as the ("Marriage Rules").

Anjana's parents appear to have objected to the

relationship. Alleging her illegal detention, Jayesh

Jayaram approached this Court in W.P.(Crl.) No.299/2015

seeking the writ of habeas corpus. It was alleged by

Jayesh Jayaram that he married Anjana on 20.5.2015 at

J.M.Hall, Vellarada, Thiruvananthapuram and the

marriage was registered under the Marriage Rules before

the Local Registrar of Marriages (Common) of Vellarada

Grama Panchayat on 29.5.2015. Ext.P2 in both cases is

the certificate of marriage issued by the Local

Registrar under the aforesaid Rules. Anjana was

produced before this Court pursuant to the direction in

that case. On interaction, she denied having contracted

the marriage with Jayesh Jayaram on 20.5.2015 at J.M.

Hall, Thiruvananthapuram. According to her, she was

forced to sign the register on pressure exerted by

Jayesh Jayaram. She also stated before this Court that

she was not under any illegal confinement. Based on the

statement made before this Court by Anjana, this Court

dismissed the habeas corpus writ petition on 14.7.2015. W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

3. Anjana moved the Local Registrar to cancel the

registration of her marriage with Jayesh Jayaram. This

was considered by the Local Registrar of marriage

pursuant to the direction of this Court in W.P.(C)

No.36328/2015. Noting that there was no fraud or

manipulation, the Local Registrar rejected the request

for cancellation vide order dated 22.12.2015.

4. Anjana approached the Appellate Authority-

Deputy Director of Panchayat, Thiruvananthapuram,

challenging the order of the Local Registrar. The

Appellate Authority, noting that no customary

ceremonies were followed in the marriage, found the

registration of the marriage to be illegal.

Accordingly, ordered the cancellation of the

registration as per the order dated 28.04.2016. In the

meanwhile, Jayesh Jayaram approached the Family Court,

Thiruvananthapuram, for restitution of conjugal rights.

This was numbered as O.P.No.85/2016.

5. Jayesh Jayaram, aggrieved by the order of the

Appellate Authority cancelling registration, approached

the Director of Panchayat in revision. Simultaneously, W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

he appears to have moved the Government as well,

challenging the order of the Appellate Authority. The

Principal Secretary of the Local Self Government

Institution of Government of Kerala vide order dated

30.1.2017 interfered with the order of the Appellate

Authority and directed the revisional authority, the

Director of Panchayat to ensure that the order of the

Appellate Authority is withdrawn.

6. Anjana approached this Court in W.P.(C)

No.20897/2017, challenging the order of the Principal

Secretary, Local Self Government Institutions,

Government of Kerala. Anjana also had raised an

objection as to the maintainability of O.P.No.85/2016

on the file of the Family Court on the ground that the

Appellate Authority interfered with the registration of

marriage in the local register. The Family Court

dismissed the objection raised by Anjana. Challenging

the above order, Anjana came before this Court in O.P.

(FC) No.443/2016. A Division Bench of this Court

considered the writ petition filed by Anjana as W.P.(C)

No.20897/2017 and O.P.(FC) No.443/2016 together and

disposed of both the cases on 23.10.2017. The Division W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

Bench quashed the orders of the Government interfering

with the Appellate Authority's order cancelling the

registration and also the order of the Appellate

Authority and relegated the parties to decide on the

validity of the marriage in O.P.No.85/2016. The order

of this Court reads thus:

"The same shall be done untrammeled by Ext.P8 order in I.A No.1300 of 2016 refusing to hold that O.P No.85 of 2016 is not maintainable. We quash Exts.P3, P4, P6,P7 and R5(b) orders as regards the validity of Ext.P2 marriage certificate in W.P.(C) No.20879 of 2017. The validity of the marriage certificate will be dependent on the final verdict in O.P No.85 of 2016."

7. Not satisfied with this Court's order as above,

Jayesh Jayaram moved the Apex Court in SLP 1784-

1785/2018. The Apex Court disposed of both cases at the

SLP stage with the following orders:

"In the impugned judgment the High Court made it very clear that the validity of the marriage will depend upon the final verdict in 0.P.No.85 of 2016, which is pending before the Family Court, Thiruvananthapuram.

W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

Mr. V.K. Biju, learned counsel for the petitioner apprehends that since Exhibits P3, P4, P6, 27 and R5 (b) have been quashed, the Family Court will be disabled from rendering a finding.

We find it difficult to appreciate this submission, as the High Court itself has made it clear that the Family Court will be free to decide the validity of the marriage.

In view of the apprehension expressed by the learned counsel for the petitioner, we make it clear that the Family Court will dispose of the case on its own merits, untrammeled by any of the observations or findings in the impugned judgment.

The Special Leave Petition is, accordingly, disposed of.

Pending application(s), if any, shall stand disposed of."

8. Thereafter, the trial commenced before the

Family Court. PWs 1 to 7 were examined on the side of

Jayesh Jayaram. He also produced documents. Anjana was

also examined as DW1. Before conclusion of the

evidence, Jayesh Jayaram, filed a memo not pressing the W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

petition. Accordingly, the Family Court dismissed

O.P.No.85/2016 on 17.3.2018 as not pressed.

9. Anjana approached this Court in review as

against the common judgment dated 23.10.2017.

Contending that in view of the action of Jayesh

Jayaram, not pressing the petition for restitution of

conjugal rights, the judgment of this Court dated

23.10.2017 in W.P.(C) No.20897/2017 will have to be

reviewed to uphold the cancellation of the registration

of the marriage in the local register. This Court,

noting that the review jurisdiction cannot be extended

to take note of subsequent events, dismissed the review

petition with liberty to agitate the grievances in

separate proceedings.

10. Anjana, thereafter, filed W.P.(C) No.6735/2022

challenging the registration of the marriage. Anjana

also filed O.P.(FC) No.127/2022 invoking Article 226 of

the Constitution challenging the judgment of the Family

Court dismissing the petition for restitution of

conjugal rights filed by Jayesh Jayaram without W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

endorsing that there was no valid marriage or marital

tie.

11. The facts as above would go to show that

Jayesh Jayaram considering himself to be the master of

the proceedings before the Family Court was able to

take away the substratum of all earlier directions in

the judgments given by this Court as well as the Apex

Court. We are now called upon to decide this case of

peculiar facts on its maintainability at the first

instance. The learned senior counsel appearing for

Jayesh Jayaram questioned the maintainability of both

cases before this Court. According to the learned

senior counsel, as against the registration of marriage

in the local register, the remedy lies in an appeal

under Rule 16 of the Kerala Registration of Marriages

(Common) Rules, 2008, before the Appellate Authority.

It is also submitted that a petition under 227 is not

maintainable as against the final order of the Family

Court.

12. The learned counsel for the petitioner, on the

other hand, pointing out the earlier orders, would W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

submit that this Court has to treat the action of not

pressing of the petition as the issue being decided

against Jayesh Jayaram and consequently, to hold that

the registration by the Local Registrar will have to be

cancelled.

13. We now have to decide the consequence of not

pressing of the petition filed by Jayesh Jayaram for

restitution of conjugal rights. That will have to be

addressed in light of the challenge made as against the

order of the Family Court. Before that, we shall advert

to the challenge now made for granting registration of

the marriage between Jayesh Jayaram and Anjana by the

Local Registrar. As we adverted to earlier, this Court

as well as the Apex Court allowed the party to agitate

regarding the validity of the marriage in the petition

filed by Jayesh Jayaram for restitution of conjugal

rights. On dismissal of the petition as not pressed,

Anjana came before this Court with a review. This Court

refused to invoke review jurisdiction. This Court as

well as the Apex Court found that fact finding can be

entered upon by the Family Court and depending upon the

outcome of such fact finding, the registration can be W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

cancelled or retained. In such circumstances, a

separate writ petition challenging the registration

cannot be entertained by this Court. If it is

entertained, that would amount to reviewing the earlier

decision of this Court in W.P.(C) No.20897/2017.

14. We come back to O.P.(FC) No.127/2022,

challenging the order of the Family Court. Can the

Family Court allow Jayesh Jayaram to not press the

petition overlooking the direction of this Court as

well as the Apex Court? We are of the view that the

Family Court could have allowed "not pressing" to the

extent of Jayesh Jayaram giving up the relief sought,

however, that could not have restrained the Family

Court from deciding the substantial issue regarding the

validity of the marriage.

15. Who is the master of the case in the Family

Court? Is it the petitioner or the Court? In an

ordinary Civil Court, where the rights and obligations

of the parties are decided, the plaintiff is the master

of case. The Family Court is governed by the Family

Courts Act and Rules. In the Family Court, the enquiry W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

is more focussed on the parties and not on the process

of litigation. The Family Court is not bound by the

rigidity of the Rules of Procedure followed in

adversarial litigation. Section 10(3) of the Family

Courts Act, 1984, states as follows:

"Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other."

16. Recently, we have referred to the functions of

the Family Court. In Nisha Haneefa v. Abdul Latheef, Ors.

[2022 ICO 320], it is appropriate to refer to

paragraphs 4 to 6, which reads thus:

"4. A combined reading of Sections 9, 10 and 14 would clearly bring out the point that the Family Court is not the mirror of an ordinary Civil Court. The powers of the Family Court can be summarized as follows:

(i) Adjudicative power following the rules of procedure as applicable under the adversarial system. (ii) Proactive role for settlement of disputes between the parties.

W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

(iii) Inquisitorial power to enquire into the truth of the matter.

5. The above enumerated powers are only for the Family Court. That distinguishes it from an ordinary Civil Court. More interestingly, it is to be noted that as reflected from Section 10(3), the Family Court is given the power to lay down its own procedure with a view to arrive a settlement, or to enquire into the truth of the facts alleged. The power to choose the mode of procedure itself sufficiently indicates that the Family Court is not bound by any strictness of procedure of law as referred in the Code of Civil Procedure, the Indian Evidence Act, Criminal Procedure Code etc. What is essential in a dispute before the Family Court is that the Family Court is only to devise procedure for fair conclusion of the proceedings. If the Family Court is able to adhere to the "fairness", the decision or order of the Family Court cannot be questioned in a higher Court. The Family Court is given complete freedom in devising fair procedure for speedy resolution of disputes before the said Court.

W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

6. The role of the presiding officer in the Family Court needs to be stressed herein. As already adverted to, in all matters, what is required by the Family Court is a fair approach in dealing with the cases before it. In many of the matters like custody, maintenance, matrimonial status etc., the responsibility of the Court is to find out the truth. The focus of the enquiry is to be on the objectives to be secured rather than focusing on the subjective element of the dispute. The very purpose of entrusting family disputes to the Family Court from ordinary Civil Court is to focus not on the rights and obligations of the disputants but on the interest of the parties and welfare of the subject of the dispute. It is also to be remembered that the disputes amenable before the Family Court sometimes may require to follow the rules of adversarial litigation. But that does not mean that the Family Court Judge is restrained from conducting enquiry related to the truth as, in an inquisitorial model. To find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection." W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

17. The party may be able to not press the relief

sought. However, the party cannot refrain the Family

Court from the finding of truth. The Family Court

cannot remain a mute spectator of the proceedings

before it. If the Family Court is of the view that the

opposite party would be affected or impacted,

consequent upon not pressing the petition, it shall

proceed with the case to find out the truth as

mentioned in the Nisha Haneefa's case (supra). The

scope of enquiry in the Family Court is not confined

with the evidence brought before it by the parties. The

Family Court is competent to embark upon any enquiry to

elicit the truth. The master of the proceedings before

the Family Court is the presiding officer of the Family

Court and not the parties. So long as the principles of

fairness are followed and adhered to, the power of the

Family Court cannot be questioned by the parties.

18. The Family Court ought not to have accepted

the request to dismiss the petition in toto without

entering into the findings regarding the status of the

marriage. Anjana was not afforded an opportunity to W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

express her views by the Family Court before acting on

the memo filed by Jayesh Jayaram not pressing the case.

In light of this Court order as well as the Apex

Court's order, the Family Court ought to have afforded

an opportunity to Anjana to state her views before the

Court on the motion moved by Jayesh Jayaram to 'not-

press the case'. When rights and obligations of the

parties to a litigation are crystalised through the

order of the Court, the basis of such an order cannot

be whittled down by one party by his unilateral

decision of not pressing the case. The Court has to

act on such a decision of not pressing by one party as

holding that the issues are decided against such a

litigant.

19. In the light of the peculiar facts, we are of

the view that the Family Court failed in exercising the

jurisdiction in accordance with the Family Courts Act,

1984 and the direction of this Court and the Apex

Court.

20. A Division Bench of this Court in Muhammed

Master v. Abu Haji [1981 KLT 578] and Mariyam v. W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

Vijayarajan [2015 (1) KLT 341] have noted the effect of

not pressing the suit. According to the Division Bench

"not pressing would have the effect of the issue being

decided against the litigant who does not press and in

favour of the opponent".

The inevitable conclusion, therefore, is that the

Family Court could not have dismissed the petition for

restitution of conjugal rights without going into the

question of validity of the marriage. In light of the

earlier judgments of this Court as well as the Apex

Court, the issue regarding validity of the marriage

will have to be decided by the Family Court. In that,

the Family Court will have to note the stand taken by

Jayesh Jayaram not pressing the petition. We,

therefore, interfere with the impugned judgment in O.P.

(FC) No.127/2022, to the limited extent for not

deciding on the validity of the marriage. We direct the

Family Court to pronounce the judgment on the validity

of the marriage in light of the stand taken by Jayesh

Jayaram not pressing the same. Needful shall be done

within four weeks from the date of appearance. The

parties are directed to appear before the Family Court W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

on 18.4.2022. O.P.(FC) No.127/2022 is disposed of as

above. W.P.(C) No.6735/2022 is disposed of with the

observation that cancellation or retention of the

registration of the marriage would depend upon the

outcome of the judgment of the Family Court in

O.P.No.85/2016. No order as to costs.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SOPHY THOMAS, JUDGE ln/ms W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

APPENDIX OF OP (FC) 127/2022 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 14-07-2015 IN W.P(CRL)NO. 299/2015.

EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 08-

07-2015 ISSUED BY THE LOCAL REGISTRAR OF MARRIAGES (COMMON), VELLARADA.

EXHIBIT P3 A TRUE COPY OF THE ORDER NO. A3/6464/2015 DATED 22-12-

2015 OF THE LOCAL REGISTRAR OF MARRIAGES (COMMON) VELLARADA.

EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 28-04-2016 IN C5-

15434/15 OF THE MARRIAGE REGISTRAR GENERAL (COMMON).

EXHIBIT P5 A TRUE COPY OF THE NOTICE NO. B1-13620/2016 DATED 18-

06-2016 ISSUED BY THE CHIEF MARRAIGE REGISTRAR GENERAL (COMMON).

EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION/ORDER NO. LSGD-R C 3/347/2016-LSGD DATED 30-01-2017 OF THE PRINCIPAL SECRETARY LOCAL ADMINISTRATION (RC)

EXHIBIT P7 A TRUE COPY OF THE REVISION PETITION NO.B1-13620/2016 DATED 26-04-2016 FILED BY THE RESPONDENT.

EXHIBIT P8 A TRUE COPY OF THE O.P 85/2016 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P9 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.NO.85/2016 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P10 A TRUE COPY OF THE COMMON JUDGMENT DATED 23-10-2017 IN OP(FC) 433/2016 AND W.P(C)NO. 20897/2017 OF THIS HON'BLE COURT.

EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 25-01-2018 SLP (CIVIL) NO. 1784-1785/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA.

EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 17-03-2018 IN O.P.NO.

85/2016 OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 22-02-2022 IN R.P NO.1039/2019 OF THIS HON'BLE COURT. W.P.(C) No.6735/2022 & O.P.(FC) No.127/2022

APPENDIX OF WP(C) 6735/2022

PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 14.7.2015 IN W.P.CRL NO.299/2015.

EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 03.06.2015 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE ORDER NO.A3/6464/2015 DATED 22.12.15 OF THE 1ST RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 28.4.2016 IN C5-

15434/15 OF THE MARRIAGE REGISTRAR GENERAL (COMMON).

EXHIBIT P5 A TRUE COPY OF THE NOTICE NO.B1-13620/2016 DATED 18.06.2016 ISSUED BY THE PANCHAYATH DIRECTOR.

EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION/ORDER NO.LSGD-R C3/347/2016-LSGD DATED 30.01.17 OF THE PRINCIPAL SECRETARY, LOCAL ADMINISTRATION (RC).

EXHIBIT P7 A TRUE COPY OF THE REVISION PETITION NO.B1-13620/2016 DATED 26.04.2016 FILED BY THE 1ST RESPONDENT.

EXHIBIT P8 A TRUE COPY OF THE COMMON JUDGMENT DATED 23.10.2017 IN OP(FC) 443/2016 AND WPC NO.20897/2017 OF THIS HON'BLE COURT.

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 25.01.2018 SLP (CIVIL) NO.1784-1785/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA.

EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 17.03.2018 IN OP NO.85/2016 OF THE FAMILY COURT, THIRUVANANTHAPURAM.

EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 22.02.2022 IN RP NO.1039/2019 OF THIS HON'BLE COURT.

EXHIBIT P12 TRUE COPY OF THE LETTER DATED 20/05/2015 ISSUED BY THE PROPRIETOR OF THE JM HALL, VELLARADA.

EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGE OF THE HALL BOOKING REGISTER OF THE JM HALL, VELLARADA.