Dismissed

Manga Venkata Lakshmi v. Gudivada Sarojini Devi

Andhra Pradesh HC1 Jul 2019CRP/5259/2018

Case brief

AI extract

What is this about?

This Court dismissed a civil revision petition challenging an order allowing a respondent to examine herself as a witness despite her husband already testifying. Relying on Section 120 of the Evidence Act, the Court held that spouses retain independent capacity to testify.

What the court decided

AI extract

Manga Venkata Lakshmi Vs Gudivada… — Civil Procedure and Limitation | Andhra Pradesh HC (2019)

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SMT JUSTICE T. RAJANI

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+ CIVIL REVISION PETITION No.5259 of 2018

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% 01.07.2019

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Manga Venkata Lakshmi

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… Petitioner

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$ Gudivada Sarojini Devi and others

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…. Respondents

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! Counsel for the petitioner: SRI R.PRASAD

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Counsel for the Respondents: NIL

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<Gist :

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Head Note:

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? Cases referred:

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2007 (1) ALD 80

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HIGH COURT OF ANDHRA PRADESH

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CIVIL REVISION PETITION No.5259 of 2018

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Between:

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Manga Venkata Lakshmi Vs. Gudivada Sarojini Devi and others

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…. Respondents

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Date of Judgment Pronounced: 01.07.2019

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Submitted for Approval:

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SMT JUSTICE T. RAJANI

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1. Whether Reporters of Local newspapers Yes/No may be allowed to see the judgments ?

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1. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals

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1. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment ?

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__________ T. RAJANI, J

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SMT JUSTICE T. RAJANI

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CIVIL REVISION PETITION No.5259 of 2018

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ORDER:

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This civil revision petition is filed by the first defendant, under Article 227 of the Constitution of India, assailing the order dated 26.7.2018, passed in I.A.No.213 of 2017 in O.S. No.178 of 2013 on the file of the Court of XIII Additional District Judge, Visakhapatnam, by virtue of which the lower Court allowed the petition, which was filed by the plaintiff-first respondent herein, under Order XVIII Rule 3A and Section 151 of the Code of Civil Procedure, 1908, seeking to grant permission to examine the plaintiff as witness.

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Heard the counsel for petitioner. None appears for the respondents.

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The lower Court allowed the petition, which was filed by the plaintiff, whose husband was examined as a witness, on a petition being filed by her under Section 120 of the Indian Evidence Act, 1872.

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The counsel for the petitioner, now, contends that since the husband of the plaintiff was already examined on her behalf, she cannot be permitted to depose before the Court, by allowing the present petition. But, in the considered opinion of this Court, the language of Section 120 of the Indian Evidence Act shows that, husband or wife can enter into box and depose as a witness in cases filed by the other spouse. It only upholds and promotes the independency of the spouses.

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In early society husband and wife were considered as a single entity. In terms of credibility, they were considered as biased towards each other. Hence, their testimonies were not accepted as credible. In the modern society, the understanding that spouses need not be biased towards each other is made explicit by Section 120 of the Act. There need not be a separate application under Section 120 to permit the spouse as a witness. It is for the court to permit and appreciate the credibility of the testimony of the wife or husband, as the case may be, as would it appreciate the evidence of other witnesses. The object of Section 120 of the Act is as above. It is not as per the contention of the counsel, that the application under Section 120 would amount to the spouse giving evidence on behalf of the applicant spouse and hence the applicant spouse is debarred from giving evidence further.

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In this case, the counsel does not deny the correctness of the order permitting the respondent to depose after the witnesses on her behalf have deposed. His argument is only that when husband has deposed in pursuance of an application under Section 120 of the Act, wife cannot again come into the witness box, which due to the above stated reasons, can be held to be misconceived understanding of the provision.

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The lower Court, while allowing the petition, relied upon the judgment of the High Court of Judicature at Hyderabad in Jaldu Visveswara Rao vs. Mandala Dhana Lakshmi¹ , wherein,

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at paragraph No.4, it was held as under:

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No order denying permission to the respondent to examine herself as a witness at a later stage can be

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1 2007 (1) ALD 80

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passed at this stage, because the reasons for the respondent not coming into the witness box in the first instance are not known. At a later stage if the respondent files a petition to examine herself as a witness, revision petitioners can take the objections available to them and depending on the orders to be passed therein they can pursue the remedies available. But they cannot seek a direction from the Court that unless an order directing the respondent not to examine herself as a witness on her behalf in future is passed, her husband cannot be examined as a witness on her behalf and I see no error in the order under revision.

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What flows from the above observation is that the wife can be permitted to examine herself as a witness at a later stage, in spite of the fact that she authorised her husband to enter into witness box and depose as her agent.

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