Family Law; Nisha Susan George Vs. Alexander Vadekkedam [Kerala High Court, 13-07-2012]

Divorce Act, 1869 – Section 10A – Family Courts Act, 1984 – Sections 7(2), 10 – Civil Rules of Practice, 1971 – Rules 145 and 146 – Heading / Signing of depositions – Nowhere in Rules it is made mandatory to put the date when the deposition is recorded. This is clearly an omission in the Rules. The Rule Committee will take note of this omission and make appropriate amendment to the Rules.

# Family Law


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

Dated this the 13th day of July, 2012

Nisha Susan George Vs. Alexander Vadekkedam

O.P.(F.C.) No.1551 of 2012 (R)

IA.NO.1360/2011 AND I.A.NO.1361/2011 IN OP(DA)1065/2008 of FAMILY COURT,TRIVANDRUM

FOR PETITIONER(S): BY ADV. SRI.RAJESH SIVARAMANKUTTY; FOR RESPONDENT(S): BY ADV. SRI.K.M.SATHYANATHA MENON

J U D G M E N T

K.T.Sankaran, J.

The petitioner, Nisha Susan George, and her husband Alexander Vadakkedam filed O.P.(DA) No.1065 of 2008 under Section 10A of the Divorce Act before the Family Court, Thiruvananthapuram, on 4.10.2008. The Family Court posted the petition to 6.4.2009, since a waiting period of six months is required under Section 10A of the Divorce Act. On 6.4.2009, both parties were present. On that day, counseling was also done. The case was adjourned to 28.5.2009. On that day, the wife was present, but the husband was absent. A representation was made on his behalf and the case was adjourned to 11.6.2009. On 11.6.2009, the evidence of the husband and the wife were recorded and the case was adjourned to 18.9.2009. The Family Court dismissed the Original Petition for default on 18.6.2009 on the ground that the parties were absent.

2. The wife filed I.A.Nos.1360 of 2011 and 1361 of 2011 in the Original Petition before the Family Court for restoration of the Original Petition dismissed for default and to condone the delay of 666 days in filing the application for restoration. The Family Court dismissed those applications by the order dated 21.2.2012, which is under challenge in this O.P.(F.C.).

3. According to the petitioner, after recording evidence, the case was posted for judgment. On that day, the parties were absent and the court dismissed the case for default. The petitioner also contends that all the formalities had been complied with and there was no justification for dismissing the case for default.

4. When I.A.Nos.1360 of 2011 and 1361 of 2011 came up for hearing, the respondent in those applications (husband) stated that he has no objection for allowing the applications and he made an endorsement to that effect on the interlocutory applications. Still, the court below dismissed the applications. The court below held that the delay was not satisfactorily explained. It was also held that even if the case is restored to file, the prayer for divorce cannot be allowed since 18 months elapsed from the date of filing of the Original Petition.

5. We called for the records and perused all the records. It is seen that the depositions of the husband and the wife were taken by the Family Court after administering oath. However, the deposition does not contain the date on which the evidence was recorded. Both the parties submitted that their evidence was recorded on 11.6.2009, i.e., after the expiry of the period of six months from the date of filing of the petition under Section 10A of the Divorce Act. It is seen that the deposition is recorded in a printed form, namely, Form 16 under Chapter XXII of the Code of Criminal Procedure. The following columns are seen in the printed sheet.

“Name, Father’s name, Village, Taluk, Caste, Calling, Religion, Age. Solemnly affirmed on the ………………day of …………20…”

However, the date on which the deposition was recorded is not entered in the column. At the foot of the deposition, there is an endorsement that “read over and found correct”. The seal of the court and the signature of the deponent are affixed. There also, the date is not seen put.

6. Section 7(2) of the Family Courts Act provides that subject to the other provisions of the Act, a Family Court shall also have and exercise –

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974) ; and

(b) such other jurisdiction as may be conferred on it by any other enactment.

7. Section 10 of the Family Courts Act provides that subject to the other provisions of the Act and the 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 purposes 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. Sub Section (2) of Section 10 states that 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 that Code before a Family Court. Sub Section (3) of Section 10 empowers the Court to lay 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. It is clear from Sections 7 and 10 of the Family Courts Act that in a proceeding under Section 10A of the Divorce Act, the Family Court has to follow the procedure as laid down in the Code of Civil Procedure. If so, the Family Court was not fully right in using Form No.16 under Chapter XXII of the Code of Criminal Procedure. Probably, the Form prescribed for recording the evidence in civil proceeding might not have been available before the Family Court. Anyhow, that by itself would not invalidate the recording of evidence in the case.

8. Rules 145 and 146 of the Civil Rules of Practice provide for recording of evidence, which read as follows :

# 145. Heading of depositions

In the heading of all depositions of witness the full name of the deponent and his or her father’s or mother’s or karnavan’s or husband’s name which the deponent usually uses as his or her surname shall be recorded. The heading shall also state the age, profession, and residence of the witness. The name of the officer who administers the oath or affirmation and name of the interpreter, if any, shall be written below the particulars stated above.

# 146. Signing of depositions

(1) After a deposition has been read over to the witness the last page thereof shall be signed in full by him. The judge shall initial every page if the deposition is not recorded in his hand. A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature thereto over his name.

“Taken down by/before me in open Court, interpreted/ read over to the witness and admitted by him to be correct”.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Presiding Judge may, instead of correcting the evidence, make a memorandum thereof or the objections made to it by the witness and shall add such remarks as he thinks necessary.”

It is interesting to note that nowhere in Rules 145 and 146 of the Civil Rules of Practice, it is made mandatory to put the date when the deposition is recorded. This is clearly an omission in the Rules. We are sure that the Rule Committee will take note of this omission and make appropriate amendment to the Rules.

9. Though the Form used by the Family Court was Form No.16 prescribed under Chapter XXII of the Code of Criminal Procedure, a column for date is specifically provided there. But, the date is not seen affixed. The question involved in this Appeal can be decided only on ascertaining whether the deposition of witnesses was recorded at the time when they filed the application under Section 10A of the Divorce Act or whether it was done after six months. For that purpose, the date of deposition is the crucial factor. From the records available, it is not clear on what date the deposition was recorded. But on verifying the various dates on which the case was posted, it is fairly clear that the evidence of the parties was recorded after the expiry of the period of six months from the date of filing of the petition under Section 10A of the Divorce Act.

10. It is necessary for the courts to ensure that when the deposition of a witness is recorded, all the relevant particulars are entered in the form with the date on which it was recorded.

11. In the present case, the Family Court dismissed the application under Section 10A for default on 18.6.2009. The petition under Section 10A was filed on 4.10.2008. Sub Section (2) of Section 10A of the Divorce Act provides that on the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to Sub Section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree. This provision enables the parties to move the court after six months of the date of filing of the petition under Section 10A. They are entitled to make motion at any time within 18 months after the date of filing of the petition. Even if a motion is made after six months and before 18 months and that attempt did not fructify because of the absence of parties, nothing prevents them from making another motion within a period of 18 months. The court cannot dismiss a petition under Section 10A before the expiry of the period of 18 months referred to in Sub Section (2) of Section 10A unless in the meanwhile the petition is withdrawn by both the parties. If on a motion made by the parties or any of them, they fail to appear, the court would be justified in closing the petition. In such an event, the parties would be entitled to move the petition under Section 10A filed by them at any time before the expiry of 18 months as provided in Section 10A.

12. When all the formalities to be complied with were complied with by the parties, the Family Court was not justified in dismissing the application for default. It is true that on 18.6.2009, the parties were not present before court, but their evidence was recorded before that date on their motion after the expiry of six months. The parties did not withdraw the petition at any time. In these circumstances, the court below was not justified in dismissing the petition for default on 18.6.2009. The order dated 18.6.2009 is illegal and it is liable to be set aside.

13. The wife filed the application for restoration of the Original Petition dismissed for default with a petition for condoning the delay. On going through the records, we are of the view that the reasons stated by the court below for dismissing the application are not legal and proper. Even otherwise, since the order dated 18.6.2009 is illegal and opposed to law, we are inclined to exercise our jurisdiction under Article 227 of the Constitution of India to set aside that order.

14. Accordingly, the O.P.(FC) is allowed. The order dated 21.2.2012 in I.A.No.1360 of 2011 and 1361 of 2011 is set aside. We also set aside the order dated 18.6.2009 passed by the Family Court and restore the Original Petition to file. It is made clear that if all the other formalities are complied with, the presence of the parties is not required and their affidavit would be sufficient, in the facts of the present case.

Registry will forward a copy of the judgment to the Rule Committee.

Comments