High Court set aside the Family Court's order dismissing a divorce petition for default and rejected applications against restoring the case, holding the default order illegal since evidence was recorded timely despite the absentia order.
Original petition restored to file; Order dated 18.6.2009 and Orders dated 21.2.2011 set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934
OP (FC).No. 1551 of 2012 (R)
---------------------------IA.NO.1360/2011 AND I.A.NO.1361/2011 IN OP(DA)1065/2008 of FAMILY COURT,TRIVANDRUM
PETITIONER(S):
NISHA SUSAN GEORGE, AGED 37 YEARS D/O.GEORGE KURIAN, HAMLET, 11TH KILOMETER KOTAGIRI ROAD, CONOOR, NILGIRIS DISTRICT TAMIL NADU, NOW R/A HOUSE NO.4,BENCY VILLA AADHITHYA NAGAR,IST PHASE,VIDHYARANYAPURA POST BANGALORE-97
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT(S):
ALEXANDER VADEKKEDAM S/O.LATE M.G.ALEXANDER, R/A.Q1, ASWATHY GARDENS MENAMKULAM, P.O.KAZHAKOOTTAM, THIRUVANANTHAPURAM-695005
BY ADV. SRI.K.M.SATHYANATHA MENON
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) 1551/2012
APPENDIX
PETITIONER'S EXHIBITS :
RESPONDENT'S EXHIBITS :
NIL
//TRUE COPY//
PA TO JUDGE
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
O.P.(F.C.) No.1551 of 2012
Dated this the 13th day of July, 2012
JUDGMENT
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 18.6.2009. The Family Court dismissed the Original Petition for
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default on 18.6.2009 on the ground that the parties were absent.
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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.
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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.
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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.
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.
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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.
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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.
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be 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.
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Registry will forward a copy of the judgment to the Rule
Committee.
K.T.SANKARAN JUDGE
M.L.JOSEPH FRANCIS JUDGE
csl
2 issues framed by the court
Whether the Family Court was justified in dismissing the divorce petition for default despite evidence having been recorded before the default order.
Whether the delay in filing the application for restoration can be condoned and the order dismissing the restoration applications set aside.
4 provisions across 3 enactments
NISHA SUSAN GEORGE
ALEXANDER VADEKKEDAM
K.T. SANKARAN
M.L. JOSEPH FRANCIS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
