Allowed

Happy Maxwell v. Mazwell M. Chennur

Kerala HC25 Nov 2022Mat.Appeal/446/2014

Case brief

AI extract

What is this about?

The High Court of Kerala allowed matrimonial appeals challenging a Family Court decree. The High Court found procedural illegality where evidence from a maintenance case was used in divorce and property disputes without re-examining witnesses. It also faulted the admission of medical records without the author's testimony. The matter was remanded for a fresh trial.

What did the court decide?

All three matrimonial appeals were allowed, original petition files restored, witnesses recalled for re-examination, and matter remanded to Family Court for fresh trial.

Happy Maxwell Vs Mazwell M. Chennur — Matrimonial and Divorce | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 25^TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA, 1944

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MAT.APPEAL NO.446 OF 2014

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AGAINST THE JUDGMENT OF THE FAMILY COURT, ERNAKULAM IN O.P.NO.968 OF 2010 DATED 26.10.2013

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APPELLANT:

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HAPPY MAXWELL AGED 40 YEARS D/O.E.K.ANTONY, ELANKUNNAPPUZHA HOUSE, NAYARAMBALAM VILLAGE, NAYARAMBALAM P.O.,PIN - 682 509, KOCHI TALUK RESIDING AT"GLORIA" NEAR ROTARY CLUB, REPUBLIC ROAD,NORTH PARAVUR, ERNAKULAM DISTRICT.

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HAPPY MAXWELL(Party-In-Person)

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RESPONDENTS:

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1 MAXWELL M.CHENNUR AGED 51 YEARS S/O.MICHAEL J.CHENNUR, CHENNUR HOUSE, VYDYARUPADI STOP, PALLIPURAM P.O., ERNAKULAM DISTRICT, PIN - 683 515.

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2 MICHAEL CHENNUR AGED 84 YEARS S/O.JOSEPH, CHENOOR HOUSE, PALLIPURAM PANCHAYATH, KUZHUPPULLY VILLAGE, KOCHI TALUK.

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3 MAGGI MICHAEL AGED 78 YEARS W/O.MICHAEL CHENNUR, S/O.JOSEPH, CHENOOR HOUSE, PALLIPURAM PANCHAYATH, KUZHUPPULLY VILLAGE,KOCHI TALUK. BY ADVS. SMT.R.LEELA SMT.SUMATHY DANDAPANI SR.

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HAPPY MAXWELL- PARTY IN PERSON

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, ALONG WITH Mat.Appeal.447/2014, 448/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal Nos.446 of 2014 and conn.cases

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 25^TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA,

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1944

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MAT.APPEAL NO.447 OF 2014

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AGAINST THE JUDGMENT OF THE FAMILY COURT,ERNAKULAM IN O.P.No.1968 OF 2009 DATED 26.10.2013

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APPELLANT:

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HAPPY MAXWELL D/O.E.K.ANTONY, ELANKUNNAPPUZHA HOUSE, NAYARAMBALAM VILLAGE, NARARAMBALAM P.O., PIN: 682 509, KOCHI TALUK, RESIDING AT “GLORIA” NEAR ROTARY CLUB, REPUBLIC ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT.

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HAPPY MAXWELL(Party-In-Person)

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RESPONDENTS:

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1 MAXWELL.M.CHENNUR AGED 51 YEARS S/O.MICHAEL J.CHENNUR, CHENNUR HOUSE, VYDYARUPADI, PALLIPURAM P.O., ERNAKULAM DISTRICT, PIN: 683 515

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2 BINURAJ ANTONY AGED 45 YEARS S/O.ANTONY, ALAPPAT HOUSE, CHURCH AVENUE ROAD, NORTH PARAVUR, PARAVUR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN: 683 513.

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BY ADVS. R.LEELA SUMATHY DANDAPANI (SR.)

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Mat.Appeal Nos.446 of 2014 and conn.cases

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, ALONG WITH Mat.Appeal.446/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal Nos.446 of 2014 and conn.cases

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶42

PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶44

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 25^TH DAY OF NOVEMBER 2022 / 4TH AGRAHAYANA,

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1944

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MAT.APPEAL NO.448 OF 2014

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AGAINST THE JUDGMENT OF THE FAMILY COURT, ERNAKULAM IN O.P.NO.1993 OF 2009 DATED 26.10.2013

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APPELLANT:

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HAPPY MAXWELL AGED 40 YEARS, D/O.E.K.ANTONY, ELANKUNNAPPUZHA HOUSE, NAYARAMBALAM VILLAGE, NAYARAMBALAM P.O., PIN - 682 509, KOCHI TALUK, RESIDING AT "GLORIA", NEAR ROTARY CLUB, REPUBLIC ROAD, NORTH PARAVUR, ERNAKULAM DISTRICT.

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HAPPY MAXWELL(Party-In-Person)

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RESPONDENT:

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MAXWELL M.CHENNUR AGED 51 YEARS S/O.MICHAEL J.CHENNUR, CHENNUR HOUSE, VYDYARUPADI STOP, PALLIPURAM P.O., ERNAKULAM DISTRICT, PIN - 683 515.

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BY ADV. SMT.R.LEELA

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2022, ALONG WITH Mat.Appeal.446/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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5 Mat.Appeal Nos.446 of 2014 and conn.cases

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J U D G M E N T

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P.G.Ajithkumar, J.

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Mat Appl. No. 446 of 2014

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This appeal under Section 19(1) of the Family Courts Act, 1984 was filed by the petitioner in O.P.No.968 of 2010 on the files of the Family Court, Ernakulam. The appellant filed O.P.No.968 of 2010 seeking a decree of declaration that sale deed Nos.2806 of 2009 and 2807 of 2009 dated 05.10.2009 of the SRO, North Paravur were sham documents. A decree of prohibitory injunction restraining respondents 2 and 3 from trespassing upon or alienating the petition schedule property was also sought. This petition was resisted by the respondent by filing a counter statement. They denied the allegation that the said properties were purchased in the name of the 1^st respondent utilizing the money of the appellant.

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1.1. The Family Court after considering the evidence on record held that the appellant failed to establish that the said documents suffer from the vices as alleged and accordingly, O.P.No.968 of 2010 was dismissed.

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1.2. This appeal was filed challenging the said judgment

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6 Mat.Appeal Nos.446 of 2014 and conn.cases

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and decree.

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2. Mat Appl. No. 447 of 2014

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The appellant-wife has filed this appeal challenging the judgment in O.P.No.1968 of 2009 of the Family Court, Ernakulam. O.P.No.1968 of 2009 was filed by the 1^st respondent seeking a decree of dissolution of marriage between the appellant and the 1^st respondent solemnized on 24.01.1993. The 1^st respondent sought a decree of dissolution of marriage under Section 10 of the Divorce Act on the ground of adultery. The 2^nd respondent is the alleged adulterer.

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2.1. The appellant filed a counter statement totally denying the allegations leveled against her. The 2^nd respondent also filed a counter statement contending that false allegations were raised against him. The Family Court, after trial, held that the evidence let in proved the allegations

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regarding adultery and accordingly granted a decree of dissolution of marriage. Challenging the said judgment and decree, this appeal has been filed by the appellant-wife.

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3. Mat Appl. No. 448 of 2014

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The appellant-wife challenges the judgment and decree

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7 Mat.Appeal Nos.446 of 2014 and conn.cases

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in O.P.No.1993 of 2009 of the Family Court, Ernakulam. The respondent-husband filed O.P.No. 1993 of 2009 for recovery of a Toyota Innova car from the possession of the appellant and to order transfer of ownership in the name of the respondent.

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3.1. The contention was that the car was purchased by the respondent by spending his own money and therefore he was entitled to get the car returned and its registration certificate transferred in his name.

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3.2. The appellant filed a counter statement denying the

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right of the respondent to get back possession of the vehicle. The appellant conceded that the vehicle was purchased by the respondent, but the appellant claimed that, being the wife she was entitled to retain possession of the same, particularly when it was absolutely necessary for facilitating the conveyance of the children for their studies. Accordingly, the appellant sought to dismiss the petition.

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3.3. After considering the evidence on record it was held that the respondent was entitled to get back possession of the said car and the appellant was obliged to transfer the

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8 Mat.Appeal Nos.446 of 2014 and conn.cases

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registration certificate in the name of the respondent. The appellant aggrieved of that judgment, has filed this appeal.

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Mat.Appeal Nos.446, 447 and 448 of 2014

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After condoning the delay these appeals were admitted

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to file. Respondents entered appearance through counsel.

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4.1. On 11.08.2021, these appeals were dismissed for non prosecution. However, on the application of the appellant these appeals were readmitted to file.

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4.2. Heard the appellant, who appeared in person and the learned counsel appearing for the respondent. The 2^nd respondent in Mat.Appeal 447 of 2014 did not turn up to make his submissions.

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The appellant is the wife. The respondent is the husband. They are referred to as the appellant and the respondent respectively for convenience. Their marriage was solemnized on 24.01.1993. They have two children. They lived abroad for about 8 years. After return and construction of a building of their own, the appellant along with children put up their permanent residence at their native place, which was in 2002. Disharmony erupted in their marital relationship

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9 Mat.Appeal Nos.446 of 2014 and conn.cases

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in 2009. All began on 02.10.2009 following an incident of finding the 2^nd respondent in Mat. Appeal No.447 of 2014 inside the house of the appellant. The respondent was alerted about it by his elder son. That followed initiation of several litigation between them and police complaints.

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The appellant along with children filed M.C No.138 of 2010 claiming maintenance. The respondent filed O.P. No.1968 of 2009 seeking dissolution of marriage on the ground of adultery. He also filed O.P No.1993 of 2009 claiming recovery of the Toyota car bearing registration No.KL 42-A8182 from the possession of the appellant. She filed O.P.No.968 of 2010 seeking a decree of declaration that she is

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a co-owner of the immovable property. The respective respondents filed counter statements.

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O.P. Nos.1968 of 2009, 1993 of 2009, 968 of 2010

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were ordered to be tried together. The trial in MC no.138 of 2010 was already concluded by that time. PWs 1 and 2 were examined on the side of the appellant and RWs 1 to 4 were examined on the side of the respondents. Exts.A1 to A24 and B1 to B20 were marked. Besides, X1 to X3 were also brought

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10 Mat.Appeal Nos.446 of 2014 and conn.cases

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on record. When O.P Nos.1968 of 2009, 1993 of 2009 and 968 of 2010 were taken up for trial the respondent filed a proof affidavit and produced 10 documents. But the appellant did not appear before the Court and she remained absent. Neither the respondent was cross examined nor any evidence was let in by the appellant. The respondent, however, filed I.A.No.2297 of 2013 seeking to call for entire evidence in M.C

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No.138 of 2010 and read the same as evidenced in O.P Nos.1968 of 2009, 1993 of 2009 and 968 of 2010 also. The Family Court allowed that petition and thereby evidence recorded in M.C.No.138 of 2010 was treated as evidence in all the four cases. The Family Court after hearing the learned counsel appearing for the respondent and co respondents, who are his parents proceeded to dispose of all the four cases on merits. In M.C No.138 of 2010, maintenance was ordered

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to be paid to the children alone. In O.P No.1968 of 2009, a decree in favour of the respondent was granted and the marriage between the appellant and the respondent was dissolved. O.P.No.1993 of 2009 was decreed allowing the respondent to repossess the Innova Car bearing

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Mat.Appeal Nos.446 of 2014 and conn.cases

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registration.No.KL 42-A-8182 and the consequential relief. O.P..No.968 of 2010 was dismissed.

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The appellant would submit that she was denied opportunity to challenge the evidence let in by the respondents inasmuch as she could not challenge that evidence with reference to her pleadings in O.P Nos.1968 of 2009, 1993 of 2009 and 968 of 2010. When those cases were decided on merits without affording her an opportunity to contest the matter and in her absence it becomes an exparte decision. She thus contends that the impugned judgments are required to be set aside and give her a chance to contest.

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It is further pointed out that Exts.X1 to X3 which

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are the medical records allegedly relating to the medical termination of pregnancy of the appellant and related treatments, those documents were admitted in evidence without examining the doctor who issued the same. Therefore the said evidence is inadmissible. Urging so the appellant submitted that without there having any evidence, the Family Court rendered the judgments in O.P Nos.1968 of 2009.

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Learned counsel appearing for the respondents

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12 Mat.Appeal Nos.446 of 2014 and conn.cases

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would submit that the appellant purposefully avoided appearance before the Court when the original petitions were taken up for trial and therefore she cannot allege that she was denied opportunity. Entire evidence in M.C.No.138 of 2009 was recorded in the presence of the appellant and therefore there was no infirmity in acting upon the said evidence. Since the parties to the proceedings and the matter in issue are the same, and the entire evidence in M.C.No.138 of 2010 was recorded in the presence of both parties the Family Court rightly had acted upon that evidence, it is contended.

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Joint trial of M.C.No.138 of 2010 along with the other 3 Original Petitions was not ordered. After completion of evidence in M.C.No.138 of 2010 the appellant failed to appear before the Court and participated in the trial. Thereafter the respondent filed I.A.No.2297 of 2013 to call for the evidence in M.C.No.138 of 2010 and read in the Original Petitions as well. True, there is no bar for tying the maintenance case along with the Original Petitions which were also relating the matrimonial dispute between the same persons.

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In Mukundan v. Katyusha, [2013 (2) KLT 981],

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13 Mat.Appeal Nos.446 of 2014 and conn.cases

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this Court held that there is no embargo on the Family court in permitting joint trial of the different proceedings before it and in fact it was to take care of such multiple proceedings that Section 10(3) itself has been incorporated. It was observed

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that the object of the Act is to ensure speedy justice in relation to issues arising out of family related disputes and therefore, the provisions of the Act should be interpreted bearing in mind such laudable objective that are sought to be achieved by the Act. The fact that different appellate or revisional remedies have been provided only requires that if a person is aggrieved by any judgment or order, he will have to pursue his remedies as provided in Section 19 and that does

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not mean that Section 19 fetters the Family Courts' power to allow joint trial .

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Therefore, there is no wrong in the Family Court considering the M.C case and three Original Petitions jointly. In M.C.No.138 of 2010 the matter in issue was only the entitlement or not of the appellant and the children to get maintenance. Going by the definition of ‘evidence’ in Section 3 of the Indian Evidence Act, 1872 all statements which the

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Mat.Appeal Nos.446 of 2014 and conn.cases

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Court permits or requires to be made before it by witnesses in relation to matters of facts under enquiry alone becomes oral

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evidence. When the oral evidence recorded in M.C.No.138 of 2010, was called for in the other cases, those statements amount to only former statements and do not amount to evidence as long as the incumbent witnesses are examined before the Court or is admissible and relevant as allowed under Sections 32, 33 etc. of the Indian Evidence Act, 1872. If such witnesses are called and they subscribe to their testimonies before the Family Court, certainly the same can be acted upon. If done so, certainly, both parties will have a right to further examine the witnesses, as the case may be, in chief or cross.

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Oral evidence of PWs 1 and 2 and RWs 1 to 4 was recorded in M.C.No.138 of 2010. But those witnesses were not recalled or examined before being acted upon in the Original Petitions. We do not mean that the Family Court could not have proceeded with exparte, if the opposite party failed to appear. If the appellant failed to appear, the Family Court undoubtedly could proceed exparte and decide the matter. But

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15 Mat.Appeal Nos.446 of 2014 and conn.cases

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the Family Court should not have acted upon the evidence in M.C.No.138 of 2010 for deciding the Original Petitions on merits, without first accepting that evidence in accordance with law.

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Reception of Exts.X1 to X3 in evidence without examining the doctors as a witness also is incorrect. Without duly proving by examining the author, and if he/she is not available, by examining a person who has acquaintance with the handwriting of the author, Exts.X1 to X3 should not have been placed reliance on.

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It is true that there were laches on the part of the appellant. But when the allegations are serious, illegality in accepting the evidence in proof of adultery and the other allegations relating to title to the property vitiates the findings of the Family Court. Those findings cannot be sustained in law. In the light of such manifest illegality and error there is no other option than to allow these appeals and remand the matter for a fresh trial. Evidence already on record may be acted upon, subject to proof of the contents as mentioned above.

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16 Mat.Appeal Nos.446 of 2014 and conn.cases

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The Family Court, Ernakulam shall restore on file O.P.Nos.1993 of 2009, 1968 of 2009 and 968 of 2010. The

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witnesses already examined shall be recalled for the purpose of further chief examination and cross examination, if any. If

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any such witness is not available, the Family Court may certainly explore the possibility of invoking the provisions of Section 33, 47, etc. of the Evidence Act. The parties may adduce further evidence also, if they so desire.

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These appeals are allowed accordingly. Both parties are directed to appear before the Family Court on 19.12.2022. The Family Court shall take every endeavor to dispose of the Original Petitions within a period of three months from the date of appearance of the parties.

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Sd/ANIL K. NARENDRAN

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JUDGE

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Sd/P.G. AJITHKUMAR

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JUDGE

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PV/Dxy

Happy Maxwell v. Mazwell M. Chennur

Case brief

What is this about?

What did the court decide?

Happy Maxwell v. Mazwell M. Chennur

Case brief

What is this about?

What did the court decide?

What the court decided

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