Kerala High Court
Harish M vs Smitha K on 16 April, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 16TH DAY OF APRIL 2024/27TH CHAITHRA, 1946
OP (FC) NO. 267 OF 2024
AGAINST THE ORDER IN IA.2& 3 OF 2024 IN OP NO.494 OF
2024 OF FAMILY COURT, OTTAPPALAM
PETITIONER/PETITIONER/PETITONER:
HARISH M.,
AGED 56 YEARS,
S/o.SREEKUMARAN,
KISMET, ELAPULLY,
PALAKKAD DISTRICT, PIN-678622
BY ADVS.
V.M.KRISHNAKUMAR
P.R.REENA
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 SMITHA K.,
AGED 51,
D/o.LATE SUKUMARAN NAIR,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN-679516
2 SUKUMARI,
AGED 75,
W/O LATE SUKUMARAN NAIR,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN 679516
OP(FC) No.267/2024
:2:
3 VIJAYARAGHAVAN,
S/o.NARAYANAN MENON,
KANNATHKALAM VEEDU,
VENGASSERY POST,
OTTAPPALAM TALUK, PIN-679516
THIS OP (FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 16.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(FC) No.267/2024
:3:
N. NAGARESH & P.M. MANOJ, JJ.
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O.P. (FC) No.267 of 2024
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Dated this the 16th day of April, 2024
JUDGMENT
~~~~~~~~~
Nagaresh, J.
The petitioner, who is the husband of the
1st respondent, has filed this OP(FC) seeking to direct the
Family Court, Ottapalam to pass orders on Exts.P6 and P7
IAs within a time fixed by this Court and before proceeding
with the trial in OP. No.288/2021 and OP. No.494/2022 of
the Family Court, Ottapalam.
2. The 1st respondent-wife filed Ext.P1 OP
No.288/2021 in the Family Court, Ottapalam seeking
divorce. The petitioner filed Ext.P2 objection to the OP.
3. The petitioner filed Ext.P3 OP No.1212/2021 in
the Family Court, Palakkad for return of the amount paid by
the petitioner to the 1st respondent, her brother and father-
in-law. The said OP No.1212/2021 was transferred to the
Family Court, Ottapalam and re-numbered as OP
No.494/2022. The 1st respondent has filed objection to
Ext.P3 OP No.494/2022.
4. The petitioner states that Ext.P3 OP for return of
amount was posted before the Family Court on 11.10.2023.
The Family Court adjourned the case to 07.12.2023. On
07.12.2023, when the case was taken up, the petitioner
submitted that a copy of the counter affidavit is not received.
However, the Family Court, without taking into account the
said submission, listed Ext.P3 OP for trial to be held on
23.03.2024.
5. The petitioner states that he was served with a
copy of the counter affidavit only on 23.03.2024. The Family
Court, even without any application made by the parties,
ordered joint trial of Exts.P1 and P3 OPs. On 08.04.2024,
the petitioner filed IA No.1/2024 for removing the case from
the list, IA No.2/2024 for receiving documents relating to
transfer of amount and IA No.3/2024 to receive witness list.
6. On 11.04.2024, the Family Court dismissed IA
No.1/2024 without assigning any reason. IA Nos.2 and 3 of
2024 were posted for objection of the respondents to
12.04.2024. On 12.04.2024, the Family Court allowed IA
No.4/2024 filed by the 1 st respondent to receive certain
documents. The petitioner was not even given an
opportunity to file objection. The Family Court accepted the
proof affidavit of the 1st respondent also on 12.04.2024.
7. The petitioner states that the Family Court has
not passed orders on IA Nos.2 and 3 of 2024. The
petitioner has to cross-examine witnesses. Effective cross-
examination can be done only after documents are
accepted. Without accepting the documents, the case now
stands posted to 17.04.2024. The petitioner therefore seeks
to direct the Family Court to give sufficient and effective
opportunity to cross-examine witnesses after accepting the
documents produced by the petitioner.
8. I have heard the learned counsel for the
petitioner.
9. Ext.P3 OP No.494/2022 is filed by the petitioner
for return of the amount. A counter affidavit to the OP was
filed by the 1st respondent only on 23.03.2024. On that day
only, the petitioner realised that the 1st respondent has
denied the receipt of money sent by the petitioner from
abroad through money exchange institution. In view of the
denial by the 1st respondent, the petitioner is forced to
adduce documents and examine witnesses to prove
payment of money. The petitioner therefore filed IA
No.2/2024 for receiving documents and IA No.3/2024 to
receive witness list. Without passing any orders, the case is
posted to 17.04.2024 for trial. The petitioner states that
unless the documents and list of witnesses are accepted,
the petitioner will be put to prejudice.
10. It is to be noted that the Family Court has not
rejected IA Nos.2 and 3 of 2024 filed by the petitioner. The
IAs stand posted to 17.04.2024. It cannot be presumed that
the Family Court will reject the IAs filed by the petitioner.
Therefore, no interference is warranted in that regard, at this
stage of the proceedings.
11. Even if the Family Court rejects the interim
application filed by the petitioner, the petitioner has
opportunity to challenge the orders passed in the IA and if
final judgment is delivered, the petitioner can challenge the
final judgment. The original petitions filed by the petitioner
and the 1st respondent are of the year 2021. Those petitions
will have to be disposed of expeditiously without further
delay.
For all the above facts, we find no justification in
granting any relief to the petitioner in this OP(FC). The
OP(FC) is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
Sd/-
P.M. MANOJ, JUDGE
aks/17.04.2024
APPENDIX OF O.P.(FC) No.267/2024
PETITIONER'S EXHIBITS:
Exhibit-P1 TRUE COPY OF OP NO.288/2021 DATED
20.04.2021 FILED BEFORE THE FAMILIY
COURT, OTTAPPALAM.
Exhibit-P2 TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER HEREIN IN OP NO.288 OF
2021 BEFORE HTE FAMILY COURT
OTTAPALAM DATED 11.10.2023.
Exhibit-P3 TRUE COPY OF OP NO.1212/221 FILED
BEFORE THE FAMILY COURT PALAKKAD
WHICH WAS TRANSFERRED TO OTTAPPALAM
FAMILY COURT AND RENUMBERED AS
OP.494/2022.
Exhibit-P4 TRUE COPY OF OBJECTION FILED BY THE
RESPONDENT IN OP NO.494 OF 2022
BEFORE THE FAMILY COURT OTTAPPALAM
DATED 13.10.2023.
Exhibit-P5 TRUE COPY OF I.A NO.1/2024 IN OP
NO.494/2022 DATED 06.4.224 FILED
BEFORE THE FAMILY COURT, OTTAPPALAM.
Exhibit-P6 TRUE COPY OF I.A.NO.2/2024 IN OP
NO.494/2022 DATED 06.04.2024 FILED
BEFORE THE FAMILY COURT.
Exhibit-P7 TRUE COPY OF I.A.No.3 OF 2024 IN OP
No.494/2022 DATED 06.04.2024 FILED
BEFORE THE FAMILY COURT, OTTAPPALAM.
Exhibit-P8 TRUE COPY OF I.A No.4 OF 2024 IN OP
No.494/2024 DATED 12.04.2024 FILED
BEFORE THE FAMILY COURT, OTTAPPALAM.
