Allowed

Moydeen v. Jasheera

Kerala HC10 Mar 2021OP (FC)/162/2021

Case brief

AI extract

What is this about?

High Court allowed original petition challenging Family Court order that dismissed petitioner's applications for summons, additional documents, and witnesses. Court held petitioner was denied fair trial opportunity to adduce evidence disproving ouster from matrimonial home and set aside impugned order.

What did the court decide?

Impugned order Ext.P11 set aside; Applications Exts.P7 to P10 allowed; Family Court directed to obtain handwriting expert opinion and dispose cases within three months.

Moydeen Vs Jasheera — Matrimonial and Divorce | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

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WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942 OP (FC).No.162 OF 2021

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AGAINST THE ORDER IN IA NOS.6,7,8 AND 9/2021 IN OP 192/2017, 194/2017, 438/2018 AND MC 300/2018 OF FAMILY COURT, TIRUR DATED 24/2/2021

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PETITIONER:

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MOYDEEN AGED 39 YEARS (ALIAS MOIDEEN) S/O. BAVA, VATTAMKANDATHIL HOUSE, NATYAMANGALAM, P.O. CHUNDAPATTA, VIA KULUKALLUR, KULUKALLUR VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.

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BY ADVS. SMT.M.SHAJNA SRI.K.M.FIROZ

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RESPONDENTS:

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1 JASHEERA AGED 28 YEARS D/O. BEERANKUTTY, THIRUNAVAYA KALATHIL HOUSE, CHELLUR EAST P.O. PAZHOOR VIA KUTTIPURAM, NADUVATTOM VILLAGE TIRUR TALUK, MALAPPURAM DISTRICT 679 571.

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OP(FC) No.162/2021

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2 MOHAMMED MUSAMMIL, AGED 8 YEARS S/O. MOIDEEN, THIRUNAVAYA KALATHIL HOUSE, CHELLUR EAST P.O. PAZHOOR VIA KUTTIPURAM, NADUVATTOM VILLAGE TIRUR TALUK, MALAPPURAM DISTRICT NOW RESIDING A T VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O. CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.

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3 BAVA, VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O. CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.

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4 SULAIKA, VATTAMKANDATHIL HOUSE, NATYAMANGALAM P.O. CHUNDAPATTA VIA KULUKALLUR, KULUKALLUR VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT 679 337.

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R1 BY ADV. SRI.JAMSHEED HAFIZ R1 BY ADV. SMT.K.K.NESNA R3-4 BY ADV. SRI.JACOB E SIMON

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(FC) No.162/2021

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J U D G M E N T

Dated this the 10^th day of March, 2021

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Dr.Kauser Edappagath, J.

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The petitioner in this Original petition filed under Article 227 of the Constitution of India challenges Ext.P11 common order dated 24/2/2021 passed by the Family Court, Tirur dismissing four petitions (Exts.P7 to P10) filed by him to issue summons to additional witness, receive additional documents, to send a document to handwriting expert and to accept additional witness list.

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The wife of the petitioner instituted three cases against him before the Court below: OP No.192/2017 for recovery of ornaments, money and past maintenance, OP No.194/2017 for dissolution of marriage and MC No.300/2018 for maintenance. The petitioner filed OP No.438/2018 against his wife, who is the 1^st respondent, for restitution of conjugal rights. All the cases were jointly tried. The evidence on the side of the respondent was completed. PWs 1 to 4 were examined. When the matter

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OP(FC) No.162/2021

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was posted for the evidence of the petitioner, he filed four applications: IA No. 6/2021 (Ext.P7) to send the handwriting in a calendar to a handwriting expert, IA No.7/2021 (Ext.P8) to issue summons to a witness to produce the document and to examine her, IA No.8/2021 (Ext.P9) to receive additional documents and IA No.9/2021 (Ext.P10) to receive additional witness. The Court below by a common order (Ext.P11) dismissed all these petitions. Challenging the said order, this Original Petition has been filed.

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Heard both sides.

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In OP No.192/2017, it is alleged that, the petitioner ousted his wife/first respondent from the matrimonial home in 2015 and she was not given a single penny as maintenance since February, 2015. Failure to perform marital obligations by the petitioner including the period from 2015 was also taken as a ground for seeking dissolution of marriage. According to the petitioner, in the calendar kept at the matrimonial home, the first respondent has made certain entries in her own handwriting after February, 2015 and it would show that she was not ousted from the matrimonial home in February, 2015 as alleged and that she was residing therein after the said period. When the wife was

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examined as PW1, the calendar and the entries allegedly made by her in it were shown to her in cross-examination. But she denied her handwriting. It was in these circumstances the petition has been filed to send the handwriting of the first respondent allegedly found in the calendar to a handwriting expert to make a comparison with her admitted handwriting. Apart from that, according to the petitioner, the respondent has falsely deposed in her cross-examination regarding his participation in the marriage of one Misna and to disprove the same, he wanted to summon the said Misna and to direct her to produce the wedding album. It was for the said purpose Ext.P8 petition was filed. Exts.P9 and P10 were filed to receive certain additional documents as well as to receive list of additional witnesses.

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The first respondent moved this Court for speedy disposal of the above cases and this Court directed the Family Court to dispose of the matter before 28/2/2021 as evident from Ext.P4. The Court below dismissed Exts.P7 to P10 applications on the ground that those were filed belatedly and if those petitions were allowed, the matter could not be disposed of within the time

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frame fixed by the High Court. The Court below also observed that the documents produced are not relevant. It is true that the documents were not produced before the evidence started. But it were produced before the commencement of evidence of the petitioner. It is pertinent to note that the calendar in question was confronted to the first respondent for the first time when she was put in box. Such course is permissible under law. Therefore, the petitioner cannot be blamed for non production of the document earlier. The definite case of the first respondent is that she was ousted from the matrimonial home in February, 2015. According to the petitioner, the said case could be disproved if the handwriting in the calendar is proved. Adducing evidence in support of the case of party to the litigation is a valuable right and the denial of the said right would amount to denial of fair trial. Fair trial includes fair and proper opportunity allowed by law

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to prove the case. It is seen from the records that during the evidence of the first respondent, she denied various facts. It was in that circumstances, acceptance of documents and witness list were necessitated. The petitioner states that based on the evidence adduced by the first respondent, it becomes necessary

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to examine the witnesses mentioned in the list. When a party to a litigation wants to adduce evidence in a particular manner in accordance with law, the Court of law cannot shut down the said evidence unless it is found to be totally unnecessary. For the simple reason that the time bound disposal of the case was directed by this Court, the petitioner cannot be denied an opportunity to adduce evidence to prove his case. We are of the view that the Family Court erred in shutting down the evidence and an opportunity has to be given to the petitioner to adduce the evidence. The learned counsel for the petitioner submitted that document can be sent to a private expert so that the delay can be avoided.

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For the reasons stated above, we hold that the Court below committed illegality in dismissing Exts.P7 to P10 applications. Hence, Ext.P11 order is liable to be set aside.

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In the result, this original petition is allowed. Ext.P11 order is set aside. Exts.P7 to P10 petitions stand allowed. The Court below shall take appropriate steps for obtaining the opinion of a handwriting expert from a private expert. The Court below shall give an opportunity to the petitioner to adduce further evidence

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sought for. Thereafter, the Court below shall also give an opportunity to the respondents to adduce further evidence, if any. The Court below shall dispose of all the cases within three months from the date of receipt of a copy of this judgment.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

JUDGE

OP(FC) No.162/2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PETITION IN O.P. NO. 192 OF 2017 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P1 (A) TRUE COPY OF COUNTER STATEMENT IN O.P. NO. 192 OF 2017 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P2 TRUE COPY OF PETITION IN O.P. NO. 194 OF 2017 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P2 (A) TRUE COPY OF COUNTER STATEMENT IN O.P. NO. 194 OF 2017 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P3 TRUE COPY OF PETITION IN O.P. NO. 438 OF 2018 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P3 (A) TRUE COPY OF COUNTER STATEMENT IN O.P. NO. 438 OF 2018 ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P4 TRUE COPY OF ORDER DATED 26.11.2020 IN O.P. (F.C) NO. 394 OF 2020 PASSED BY THE FAMILY COURT, TIRUR. EXHIBIT P5 TRUE COPY OF DEPOSITION OF PW1 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY COURT , TIRUR. EXHIBIT P5 (A) TRUE COPY OF DEPOSITION OF PW2 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY COURT , TIRUR.

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EXHIBIT P5 (B) TRUE COPY OF DEPOSITION OF PW3 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY COURT , TIRUR. EXHIBIT P6 TRUE COPY OF I.A. NO. 5 OF 2021 ON THE FILES OF FAMILY COURT TIRUR. EXHIBIT P6 (A) TRUE COPY OF DEPOSITION OF PW4 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY COURT TIRUR. EXHIBIT P7 TRUE COPY OF I.A. NO. 6 OF 2021 IN O.P. NO. 192 OF 2017 AD CONTENTED CASES ON THE FILES OF FAMILY COURT TIRUR. EXHIBIT P7 (A) TRUE COPY OF OBJECTION IN I.A. NO. 6 OF 2021 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY OCURT, TIRUR. EXHIBIT P8 TRUE COPY OF I.A. NO. 7 OF 2021 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ALONG WITH WITNESS LIST ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P9 TRUE COPY OF I.A. NO. 8 OF 2021 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ALONG WITH WITNESS LIST ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P10 TRUE COPY OF I.A. NO. 9 OF 2021 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ALONG WITH WITNESS LIST ON THE FILES OF FAMILY COURT, TIRUR. EXHIBIT P10 (A) TRUE COPY OF OBJECTION IN I.A. NO. 9 OF 2021 IN O.P. NO. 192 OF 2017 AND CONNECTED CASES ON THE FILES OF FAMILY COURT, TIRUR.

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EXHIBIT P11

TRUE COPY OF COMMON ORDER DATED 24.02.2021 IN I.A. NO. 6 OF 2021, I.A. NO. 7 OF 2021 , I.A. NO. 8 OF 2021 AND I.A. NO. 9 OF 2021 IN O.P. NO. 192 OF 2017 PASSED BY THE FAMILY COURT, TIRUR.

Moydeen v. Jasheera

Case brief

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What did the court decide?

Moydeen v. Jasheera

Case brief

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