Kerala High Court
Rosily vs John on 8 November, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA,
1946
OP (FC) NO. 677 OF 2024
OP NO.172 OF 2017, FAMILY COURT, IRINJALAKUDA
ORDER IN IA 48/2024 IN IA 28/2023, FAMILY COURT,
IRINJALAKUDA
PETITIONER/PETITIONER:
ROSILY, AGED 62 YEARS, W/O.JOHN,
KAVUNGAL HOUSE, KIZHAKKE CHALAKUDY DESOM &
VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT,
PIN - 680307.
BY ADVS.SINDHU SANTHALINGAM
A.D.SHAJAN
JESSY S.SALIM
RESPONDENT/RESPONDENT:
JOHN, AGED 69 YEARS, S/O. KUNJUVAREED,
KAVUNGAL, CHETTIKKULAM DESOM,
KODASSERY VILLAGE, CHALAKUDY TALUK,
CHALAKUDY DESOM THRISSUR DISTRICT,
PIN - 680721.
SRI GRACIOUS KURIAKOSE(SR.);
SRI PRANOY KOTTARAM
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 677 OF 2024
-2-
JUDGMENT
Devan Ramachandran, J.
The respondent has filed O.P.No.172/2017
before the learned Family Court, Irinjalakkuda,
making certain claims against the petitioner-his
wife.
2. It transpires that, the petitioner-
wife, thereupon filed an application, numbered
as I.A.No.28/2023, to allow her daughters, who
are abroad, to testify as witnesses through
electronic platform, which was allowed on
17.11.2023. Thereupon, after elapse of some
time, she filed I.A.No.48/2024, seeking that the
said witnesses be allowed to offer their
deposition from their residence through
videoconferencing, without having to travel to
the Indian Embassy - which is the remote point
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as notified under Electronic Video Linkage Rules
for Court (Kerala), 2021. The petitioner
explains that one of her daughters stays four
hours away from the Embassy, thus making it very
difficult for her to travel to it; while, the
other one has three children, thus
incapacitating her to offer testimony through
the Embassy.
3. The learned Family Court, however,
dismissed I.A.No.48/2024 through Ext.P3 order,
accusing the petitioner of not having taken
steps to examine the witnesses in spite of the
factum of I.A.No.28/2023 having been allowed on
17.11.2023; and further stating that this Court
has already fixed a time frame for disposal of
the Original Petition, through the order in
I.A.No.1/2024 in Mat.Appeal No.337/2023, which
is to expire on 09.11.2024.
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OP (FC) NO. 677 OF 2024
4. Smt.Sindhu Santhalingam - learned
counsel for the petitioner, vehemently argued
that her client, being the mother of the
witnesses sought to be examined, is fully aware
of their difficulty and that it is, therefore,
that she filed I.A.No.48/2024 seeking permission
for them to appear for videoconferencing from
their respective residences. She explained that
if this is not permitted, her client would lose
the opportunity of examining very relevant
witnesses; and thus prayed that Ext.P3 be set
aside.
5. Sri.Gracious Kuriakose, learned
Senior Counsel, instructed by Sri.Pranoy K.
Kottaram - learned counsel for the respondent,
argued that the attempt of the petitioner is
only to protract the proceedings, as is evident
from the factum of her not having taken any
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steps after the learned Court allowed
I.A.No.28/2023 as early as on 17.11.2023. He
contended that, in any event, the difficulties
now stated by the petitioner in I.A.No.48/2024
is not that of hers, but that of the proposed
witnesses; and hence, that it is for the latter
to have informed the Court appropriately, after
they are served summons to appear online and
offer testimony. He, therefore, argued that
Ext.P3 is irreproachable and prayed that it be
left uninterdicted.
6. We have examined Ext.P3, on the
touchstone of the afore rival submissions.
7. We do not now propose to go into
the merits of any of the rival contentions of
the parties, as impelled in the Original
Petition; and we confine ourselves solely to the
question whether the petitioner was justified in
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having filed I.A.No.48/2024 on behalf of the
witnesses and to seek their exemption from
having to travel into the Indian Embassy, which
is the designated remote point, as per the
Rules.
8. Prima facie, it is indubitable
that, when a litigant cite witnesses and calls
them for examination; and if the latter is to
encounter difficulty, it is for them to inform
the Court appropriately.
9. In this case, as rightly argued by
the learned Senior Counsel - Sri.Gracious
Kuriakose, the order allowing the witnesses to
testify through online medium was issued by the
learned Family Court as early as on 17.11.2023
in I.A.No.28/2023. If the petitioner has not
taken any steps thereafter, then she cannot find
fault with the learned Court in having issued
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Ext.P3; but a larger issue arises whether she
should now be foreclosed from leading evidence,
to the extent which is statutorily permissible
to her.
10. The factum of this Court having
fixed a time frame, which expires on 09.11.2024,
to dispose of the Original Petition is also
something which is very pertinent and relevant.
Normally, we cannot interfere with the same.
11. However, adverting to the factum of
the petitioner requiring to be offered every
opportunity in law to lead evidence, we are
certain that we will be justified in offering
her a limited indulgence.
In the afore circumstances, and in such
perspective, we allow this Original Petition in
part; however, clarifying that, even though
Ext.P3 order is not interdicted by us, it will
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not preclude the petitioner from taking steps to
the witnesses and for the latter to inform the
Court of any difficulty that they may face.
However, all they should be done within a time
frame that we propose.
Consequently, we allow the petitioner to
take steps to the cited witnesses, as permitted
by the learned Family Court in I.A.No.28/2023,
within a period of two weeks from the date of
receipt of a copy of this judgment. On this
being done, the learned Family Court will
proceed to record the testimony of the witnesses
as per law; and if they raise any valid
objection, the same will also be considered,
after affording necessary opportunities to both
sides as per law.
We also leave liberty to the parties to
move the learned Bench of this Court which
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passed the judgment in Mat.Appeal No.337/2023,
for extension of time, adverting to our afore
directions.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
akv JUDGE
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OP (FC) NO. 677 OF 2024
APPENDIX OF OP (FC) 677/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE PETITION DATED
17/11/2023 IN I A NO. 28/2023 IN O P
NO. 172/2017 FILED BEFORE THE FAMILY
COURT, IRINJALAKUDA SEEKING PERMISSION
TO PETITIONER'S DAUGHTERS BY VIDEO
CONFERENCE
EXHIBIT P2 A TRUE OF THE AFFIDAVIT DTD.
22/10/2024 IN I A NO 48/2024 IN I A
NO. 28/2023 IN O P NO. 172/2017 FILED
BEFORE THE FAMILY COURT, IRINJALAKUDA
SEEKING PERMISSION FOR EXAMINATION BY
VIDEO CONFERENCE
EXHIBIT P3 A TRUE COPY OF THE ORDER DATED
28/10/2024 IN I A NO. 48/2024 IN I A
NO. 28/2023 IN O P NO. 172/2017 OF THE
FAMILY COURT, IRINJALAKUDA
