Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 12TH DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 OP (FC) NO. 174 OF 2021 AGAINST THE COMMON ORDER DTD 20.2.2021 IN OP 58/2018 & OP 460/2018 ON THE FILE OF FAMILY COURT, PATHANAMTHITTA PETITIONER/RESPONDENT:
AJITH KUMAR M.K.
AGED 44 YEARS S/O. UNNIKRISHNAN NAIR, MADATHIL HOUSE, CHERUKULANJI P.O, VADASSERIKA VILLAGE, RANNI TALUK, PATHANAMTHITTA-689 614 BY ADVS.ABRAHAM P.MEACHINKARA SRI.P.MURALEEDHARAN SRI.GEORGE CLEETUS SRI.P.A.SAINUDEEN SMT.MARGARET MAUREEN DROSE RESPONDENT/PETITIONER:
PRASEETHA AJITH, AGED 35 YEARS D/O. DEVAKIAMMA, MADATHIL HOUSE, CHERUKULANJI P.O, VADASSERIKA VILLAGE, RANNI TALUK, PATHANAMTHITTA-689 673.
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2 O.P.(FC) No.174 of 2021 AMIT RAWAL & C.S.SUDHA, JJ.
----------------------------------------------------- O.P.(FC) No.174 of 2021 ----------------------------------------------------- Dated this the 12th day of December, 2023 J U D G M E N T C.S.Sudha, J.
This petition under Article 226 of the Constitution of India has been filed challenging the order dated 20/02/2021 in O.P.Nos.58/2018 and 460/2018 on the file of the Family Court, Pathanamthitta. O.P.No.58/2018, that is Ext.P1, has been filed by the respondent herein/wife seeking return of gold ornaments from the petitioner herein/husband. O.P.No.460/2018, that is Ext.P2, has been filed by the husband seeking a decree of permanent prohibitory injunction against the respondents therein who are his wife and in-laws from trespassing into the plaint schedule property or interfering with his peaceful possession of the same.
2.
Both the aforesaid cases were ordered to be jointly tried.
O.P.No.58/2018 filed by the wife is seen to have been taken as the main case in which evidence has been recorded. After the close of the evidence of the respondent/wife, the matter was posted for the evidence of the petitioner/husband, who filed a proof affidavit in lieu of chief examination
3 O.P.(FC) No.174 of 2021 along with several documents to be brought in evidence. The contents of the affidavit was objected to on behalf of the respondent/wife on the ground that they were not confined to the facts in issue. Many of the documents produced were stated to be totally irrelevant to the matter in dispute. The family court accepting the argument, passed Ext.P5 order, the relevant portion of which reads thus - “xxx xxx xxx 2. I have gone through the proof affidavit of the respondent. I have no hesitation to hold that the proof affidavit is not confined to the facts in issue and the documents produced along with the proof affidavit include so many irrelevant documents. Hence the respondent is directed to file fresh proof affidavit confining to the facts in issue, avoiding repetitions and arguments, deleting paragraphs No.14 to 20, 23 to 33, 34, 36, 36(i) to 36(vi), 37 and 37(i) to 37(vii), 38, 39,40, 40(i) to 40(iv). 42, 43 excluding documents B2, B3, B13, B14 to B19, B20, B21 to B28, B34, B36, B38, B48, B49, B52, B54 and B55. The respondent is directed to cut short the paragraphs No.3,4,5,6,8,9,10,11 and 13. The respondent is also directed to remove the averments against the petitioner regarding adultery.” The petitioner/husband aggrieved by the aforesaid order, challenges the same in the present proceedings.
3.
Though notice has been served on the respondent/wife, there is no appearance on her behalf. Ext.P5 order has been stayed by this Court by
4 O.P.(FC) No.174 of 2021 order dated 05/03/2021. It appears that the family court has not further proceeded with the matter.
4.
It was submitted by the learned counsel for the petitioner/husband that the family court grossly erred in passing Ext.P5 order. The right of the petitioner/husband to rebut the various allegations of the respondent/wife would be lost if Ext.P5 order is allowed to stand and hence needs to be interfered with.
5.
We refer to paragraphs 12 and 13 of the present petition which read thus - “12. On 11-2-2021, when the case was called, Counsel for Respondent orally submitted that (i) Chief affidavit contains irrelevant documents;
(ii) 55 exhibits produced are not relevant; and (iii) requested the court to direct the Respondent therein to file a fresh chief affidavit.
13. Counsel for Respondent therein objected and submitted that all documents are relevant in the facts and circumstances of the case and are most essential to defend and prove his case.” Reference to paragraph 1 of the impugned order is necessary. It reads thus - “The respondent in OP. No.58/2018, which was ordered to be tried jointly with OP.No.460/2018, in which he is the petitioner, filed proof affidavit. The learned counsel for the petitioner in OP.No.58/2018 and the respondent in OP No.460/2018 submitted that the proof affidavit of the respondent is not confined to the facts in issue and the
5 O.P.(FC) No.174 of 2021 documents produced along with the proof affidavit includes irrelevant documents. The learned counsel for the respondent has not opposed the submission of the learned counsel for the petitioner but prayed for passing appropriate order.” (Emphasis supplied) The petitioner/husband does not have a case that what has been recorded by the court is wrong. This makes it clear that the allegation in paragraph 13 of the petition that the request on behalf of the wife to exclude irrelevant documents and pleadings had been objected to by the petitioner/husband, is totally incorrect. The petitioner/husband never opposed the submission made on behalf of the respondent/wife. He never had a case that the pleadings and documents ordered to be excluded were necessary for a just adjudication of the matter in dispute. We also refer to paragraphs 15 and 16 in the statement of facts of the present petition which read thus - “15. The Petitioner as Respondent was constrained to file such a lengthy affidavit only for the reason that the respondent as petitioner has already lead evidence on the basis of her unnecessary averments for determination of the case on hand. Having allowed the respondent as petitioner to lead evidence on matters that are not an issue to be decided in the case, it is unjust to prevent this petitioner from controverting her. Therefore, the averments which are essential and to defend his case supported by the essential and required documents alone are produced by this Petitioner as respondent in the Court below. Some of the averments made by the Respondent as Petitioner in this proceedings, if not defended, will be utilized by them in other
6 O.P.(FC) No.174 of 2021 proceedings, viz., in the M.C, where the income of the Petitioner is an issue.
16. Therefore, the Court below is not justified in directing the Petitioner/Respondent to remove the important and the crucial averments/contentions, remove important and crucial documents produced for relying on. If the contentions and documents are removed, as directed by the court below, Petitioner/Respondent will have no defence, especially the documents (Exhibits R3 in court below) obtained under the Right to Information Act. In matrimonial cases, many true facts are to be brought before the court, to prove the conduct of the parties. True copy of the Letter dated 15-10-2020 issued by the State Tax Officer, GST, Adoor is produced and marked as Exhibit P6.” (Emphasis supplied) If the respondent/wife had brought in irrelevant pleadings and evidence on record, the petitioner/husband ought to have raised his objection(s) then and there and ought to have got it excluded. It appears that when the respondent/wife was in the box and had filed a proof affidavit and produced the documents, he had never raised a contention that the contents of the affidavit contained irrelevant matters or that the documents are irrelevant.
The petitioner/husband does not have a case that though such an objection had been raised, the family court did not consider it or had without reasonable cause, rejected it. Therefore, without raising any such objection before the family court, it cannot now be contended that irrelevant
7 O.P.(FC) No.174 of 2021 pleadings and documents were allowed to be admitted by the family court on behalf of the respondent/wife. Further, it appears from a reading of the aforesaid paragraphs in the petition that it is not because the pleadings and documents which were directed to be excluded by Ext.P5 are in any way relevant to decide the facts in issue, but the petitioner/husband wants them to be brought on record only because the trial court permitted his wife to bring in irrelevant materials on record. As the trial court had permitted his wife to bring in irrelevant materials, he should also be permitted to bring to do so. There is no logic in such an argument. Even assuming that the family court had committed such a mistake, the same mistake cannot be allowed to be repeated.
6.
Moreover, in O.P.No.58/2018 the issue involved is whether the wife had infact the gold ornaments she claims to have at the time of marriage ; whether there was any entrustment of the same to the petitioner/husband and whether they were misappropriated by the husband.
The second question would be whether the petitioner/husband is the exclusive owner in possession of the plaint schedule property in O.P.No.460/2018 and so whether he is entitled to a decree of permanent prohibitory injunction as prayed for in the said case. For deciding the aforesaid issues, the purported illicit alliances of the respondent/wife or the
8 O.P.(FC) No.174 of 2021 mental health of the daughter of the couple or the qualifications of the petitioner/husband are irrelevant. Therefore, the family court was right in excluding the pleadings and documents touching on those aspects which have no relevance on the matter in controversy in the aforesaid original petitions. We find no infirmity in Ext.P5 order. We however make it clear that the petitioner/husband shall be permitted to bring in all evidence to disprove the case of the respondent/wife in Ext.P1 and to prove his entitlement to a decree of permanent prohibitory injunction as prayed for in Ext.P2.
With the aforesaid observation, this original petition sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/- AMIT RAWAL JUDGE Sd/-
C.S.SUDHA JUDGE ami/