Mr.Siddarth Selvakumar vs Dr. S.Selvakumar
2022 Latest Caselaw 10909 Mad

                                                                                 C.R.P. (PD) No.1643 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 23.06.2022

                                                           CORAM

                                   THE HONOURABLE MS. JUSTICE R.N.MANJULA

                                               C.R.P. (PD) No.1643 of 2022
                                                           and
                                           C.M.P.Nos.8192, 8158 & 8191 of 2022

                     Mr.Siddarth Selvakumar,
                     S/o. Dr.S.Selva Kumar                                        ... Petitioner

                                                        Versus

                     1. Dr. S.Selvakumar
                        S/o. Dr.A.B. Selvarangan

                     2. Mrs. Savithri Selvakumar
                        W/o. Dr. S. Selva Kumar                                   ... Respondents

                     Prayer:- Civil Revision Petition has been filed under Art. 227 of
                     Constitution of India, praying to set aside the docket order dated 26.04.2022
                     in H.M.O.P. No.2357 of 2015 on the file of Principal Family Court,
                     Chennai.

                                     For Petitioner              : Mr.Subbu Ranga Bharathi

                                     For Respondents             : Mr. Ganesh for
                                                                   M/s. S.Namasivayam for R1



                     1/11


https://www.mhc.tn.gov.in/judis
                                                                                C.R.P. (PD) No.1643 of 2022




                                                           ORDER

This Civil Revision Petition has been preferred challenging the

docket order passed by the learned Principal Family Court, Chennai dated

26.04.2022 in H.M.O.P. No.2357 of 2015.

2. The Revision Petitioner is the respondent witness No.3. The 1st

respondent is the husband and the 2nd respondent is the wife. The original

petition in H.M.O.P. No. 2357 of 2015 was filed by the 1st respondent

husband against the 2nd respondent wife for dissolution of marriage. During

the enquiry on the side of 2nd respondent wife, three witnesses were

examined. This Revision Petitioner was examined as R.W.3. He was

examined in chief on 20.10.2021, 22.10.2021, 26.10.2021, 30.10.2021,

18.11.2021, 06.12.2021, 16.12.2021, 28.12.2021, 29.12.2021, 01.03.2022

and 10.03.2022. On 10.03.2022, the matter was adjourned to 21.03.2022 for

further cross-examination of R.W.3. Since the courts were functioning

through video conference, the examination of witnesses was not taken place

for some time and the cases were being adjourned. On 26.04.2022, a docket

https://www.mhc.tn.gov.in/judis C.R.P. (PD) No.1643 of 2022

order was passed to issue witness warrant to R.W.3/Revision Petitioner for

his non-appearance. Aggrieved over that, this Civil Revision Petition has

been filed.

3. The learned counsel for petitioner submitted that for conduction of

the cases before the Family Court, generally, the provisions of Civil

Procedure Code is applicable. Hence, the learned Family Court does not

have any powers to issue witness warrant to a witness for his non-

appearance. The learned counsel for petitioner drew the attention of this

court to Order XVI Rule 5 and submitted that the procedure contemplated

under Order XVI Rule 10 should be observed, if the witness does not attend

the court without any lawful excuse. In support of his above submissions, he

also cited the decision rendered by the High Court of Madhya Pradesh in a

Writ Petition No.2039 of 2006 in the case of Vinod Tiwari vs. Employees

Provident Fund Organisation and others. In the said judgment, the High

Court of Madhya Pradesh has held as follows:-

“In the absence of any provision in either the Act or the Civil Procedure Code for detention of the petitioner in civil prison for failure to produce the records summoned to be produced,

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the impugned order dated 17.04.2006 passed by the Assistant Commissioner is without the authority of law. Since the petitioner's right to personal liberty under Art.21 of the Constitution has been grossly violated by the impugned oder, we quash the impugned order in so far as it directs detention of the petitioner in civil prison for failure on his part to produce the records summoned.”

By citing the above judgment, the learned counsel for the petitioner further

submitted that only when the witness deliberately avoids to make his

appearance before the court, the coercive steps contemplated under Order

XVI Rule 12 can be resorted to.

4. The learned counsel for respondent also conceded the fact that as

per the procedure contemplated under Sec. 10 of the Family Court Act, the

Family Court Judge is expected to adopt the Civil Procedure Code while

conducting enquiry in the H.M.O.P. proceedings.

5. The Family Court Judge is not empowered to issue witness warrant

for the default of a witness in making his appearance for examination. The

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procedure to be followed by the Family Court for conducting the case

before the Family Court is set out under Sec.10 of the Family Court Act and

it reads as under :-

“Sec. 10 of the Family Court Act

Procedure generally.-(1) Subject to the other provisions of this Act and

rules, the provisions of the Code of Civil Procedure, 1908(5 of 1908), and

of any other law for the time being in force shall apply to the suits and

proceedings other than the proceedings under Chapter IX of the Code of

Criminal Procedure, 1973(2 of 1974), before a Family Court and for the

purpose of the said provisions of the Code, a Family Court shall be

deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provisions

of the Code of Criminal Procedure, 1973 (2 of 1974), or the rules made

thereunder, shall apply to the proceedings under Chapter IX of the Code

before a Family Court.

(3) 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."

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6. Even though the Family Court has got the selective powers to

follow the provisions of Code of Criminal Procedure, that can be adopted

only when the proceedings under Chapter IX of Criminal Procedure Code

are conducted before the Family Court. Admittedly, for the enquiry

proceedings in H.M.O.P. No.2357 of 2015, Civil Procedure should be

followed.

7. The proceedings under Chapter IX of Criminal Procedure Code

refers about the proceedings conducted under Sec.125 to 128 Cr.P.C. in

connection with the claim maintenance. During such proceedings, the

Family Court is vested with the power to follow the Criminal Procedure

Code and issue warrant for the absence of the witness under Sec. 87 of

Cr.P.C. But, for the proceedings conducted by the Family Court by

adopting Civil Procedure Code, if a witness fails to turn up for examination,

the only course open to the Family Court Judge is to invoke the procedure

contemplated under Order XVI Rule 12 of C.P.C. Order XVI Rule 12 reads

as under :-

https://www.mhc.tn.gov.in/judis C.R.P. (PD) No.1643 of 2022

“Order XVI R. 12 C.P.C.

12. Procedure if witness fails to appear— [191][(1)] The Court may,

where such person does not appear, or appears but fails so to satisfy the

Court, impose upon him such fine not exceeding five hundred rupees as it

thinks fit, having regard to his condition in life and all the circumstances

of the case, and may order his property, or any part thereof, to the

attached and sold or, if already attached under rule 10, to be sold for the

purpose of satisfying all costs to such attachment, together with the

amount of the said fine, if any:

Provided that, if the person whose attendance is required pays into Court

the Costs and fine aforesaid, the Court shall order the property to be

released from attachment."

The above Rule also would empower the courts to impose a fine not

exceeding Rs.500/- or attach his property for non-payment. Even these

coercive steps can be taken only after issuing proclamation as stated under

Order X Rule 2. So, even according to Order XVI Rule 10, the warrant

cannot be issued without issuing a proclamation. In the situation dealt with

the case in hand, not even summons is issued, and the witness was produced

by the 2nd respondent herself. Only if the Civil Court summons the witness

for giving evidence or to produce any documents, the Civil Court can

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compel the attendance of any person by issuing a warrant for his arrest in

compliance of Sec.32 of Code of Civil Procedure.

8. In the case in hand, R.W. 3 appeared himself and no court

summons was issued for his attendance. Even if a court summons issued,

but the witness fails to make his appearance, the issuance of warrant cannot

be an automatic outcome. The person concerned should be given with the

opportunity by giving notice as to why coercive steps should not be resorted

against him. In the case in hand, it is seen that R.W.3 has filed his chief

affidavit on 11.10.2021 and thereafter, he was called for cross-examination

on 20.10.2021, 22.10.2021, 26.10.2021, 30.10.2021, 18.11.2021,

06.12.2021, 16.12.2021, 28.12.2021, 29.12.2021, 01.03.2022 and

10.03.2022. The learned counsel for petitioner submitted that on all these

dates, R.W.3 was put to a very lengthy cross-examination. It is also stated

that he was asked with several unnecessary questions irrelevant to the

purpose of the case.

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9. The learned Trial Judge without appreciating the earlier presence of

R.W. 3 for several hearing and without issuing any notice, had issued the

witness warrant, which is not legal. Even if the R.W.3's absence is wanton,

the Court has to deal the situation only in accordance with Sec.32 and Order

XVI Rule 16 and not otherwise. Since the learned Trial Judge has issued the

witness warrant unmindful of the procedure, that has to be adopted during

enquiry proceedings in the Original Petition filed in the Family Court, the

impugned order is liable to be set aside and the witness warrant should be

recalled.

10. In the result, this Civil Revision Petition is allowed and the order

of the learned Principal Family Court Judge, Chennai dated 26.04.2022 in

H.M.O.P. No.2357 of 2015 is set aside and the warrant issued, if any, stands

recalled. However, R.W.3 shall make his appearance before the Principal

Family Court, Chennai on 30.06.2022 and on his appearance, the learned

counsel for 1st respondent husband should complete the cross-examination

on that day itself without making the witness to wait or to come again. The

learned trial judge shall be proactive in not allowing irrelevant questions

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and see the cross is completed. The learned Trial Judge shall also dispose

the proceedings in H.M.O.P. No. 2357 of 2015 as expeditiously as possible

taking into consideration of the earlier direction given by Hon'ble Supreme

Court in Special Leave to Appeal (C) No.34249 of 2017. Consequently, the

connected Civil Miscellaneous Petitions are closed.

23.06.2022 rpp

To

Principal Family Court Judge, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P. (PD) No.1643 of 2022

R.N.MANJULA, J.

rpp

C.R.P. (PD) No.1643 of 2022

23.06.2022

https://www.mhc.tn.gov.in/judis