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 :