Hadia Firdouse v. Abdul Vahab

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 8TH DAY OF OCTOBER 2014/16TH ASWINA, 1936 OP (FC).No. 163 of 2014 (R) ---------------------------- AGAINST THE ORDER IN I.A.NOS.4508 & 4509 OF 2013 IN OP 159/2010 of FAMILY COURT,ERNAKULAM PETITIONER: ----------HADIA FIRDOUSE, AGED 23 YEARS D/O.K.K.MOHAMED HYDER, KOLLIYIL HOUSE CHERAMAN MALIK NAGAR, KODUNGALLUR TRISSUR DT. ALSO RESIDING AT POST BOX NO.4020 PURCHASING DEPARTMENT MINISTRY OF INTERIOR, DOHA STATE OF QATAR. BY ADVS.SRI.ALAN PAPALI SRI.M.H.HANIL KUMAR SRI.M.R.DHANIL RESPONDENT(S): -------------ABDUL VAHAB @ VAHAB, S/O.SULTHAN MOIDEEN, KANJIRAPARAMBU HOUSE, VEDIMARA MANNAM P.O., NORTH PARAVOOR, ERNAKULAM DIST. PIN-683520. R1 BY ADV. SRI.S.RAJEEV R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 163 of 2014 (R) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1: COPY OF THE ORDER DATED 24.2.2014 PASSED BY THE FAMILY COURT, ERNAKULAM IN I.A.NO.4508/2013 IN O.P.NO.159 OF 2010. P2: COPY OF THE ORDER DATED 24.2.2014 PASSED BY THE FAMILY COURT, ERNAKULAM IN I.A.NO.4509/2013 IN O.P.NO.159 OF 2010. P3: COPY OF THE PETITION IN O.P.(DIVORCE) NO.159/2010 DATED 29.01.2010 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. P4: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.P.NO.159/2010 DATED 21.01.2011 BEFORE THE FAMILY COURT, ERNAKULAM. P5: COPY OF THE PETITION IN O.P.NO.156/2010 DATED 29.01.2010 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. P6: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.NO.156/2010 DATED 13.10.2010 BEFORE THE FAMILY COURT, ERNAKULAM. P7: COPY OF THE JUDGMENT DATED 16.01.2013 IN O.P.(FC)NO.4557/2012 OF THIS HON'BLE COURT. P8: COPY OF THE PETITION, I.A.NO.4508/2013 IN O.P.NO.159/2010 DATED 20.12.2013 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. P9: COPY OF THE PETITION, I.A.NO.4509/2013 IN O.P.NO.159/2010 DATED 20.12.2013 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. P10: COPY OF OBJECTION FILED BY THE PETITIONER IN I.A.NO.4508/2013 IN O.P.NO.159/2010 DATED 30.12.2013 BEFORE THE FAMILY COURT, ERNAKULAM. P11: COPY OF OBJECTION FILED BY THE PETITIONER IN I.A.NO.4509/2013 IN O.P.NO.159/2010 DATED 30.12.2013 BEFORE THE FAMILY COURT, ERNAKULAM. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE ## **T.R.RAMACHANDRAN NAIR & P.V ASHA, JJ. ----------------------------------------------------O.P.(FC) No.163 of 2014-R** **---------------------------------------------------Dated this the 8[h] day of October, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. This Original Petition is filed by the petitioner challenging Exts.P1 and P2 orders passed by the Family Court, Ernakulam, in I.A.No.4508 of 2013 and 4509 of 2013 in O.P.No.159 of 2010. 2. By Ext.P1 order, the learned Judge ordered to send two greeting cards alleged to have been sent by the petitioner herein to the respondent herein and an authorisation letter dated 13.08.2009, requesting to conduct the petitioner's `Nikah' with the petitioner and to examine her signature and thumb impression with admitted signature and thumb impression and handwritings for examination by a Handwriting Expert. By Ext.P2 order the court ordered to send the photographs marked as Exts.B1 to B8 and B11 and B10 series e-mail communications to CDAC, with its original photos and negatives of Exts.B1 to B8 and B11 and B10. CD if any. 3. The learned counsel for the petitioner Sri Alan Papali mainly raised the following contentions:- It is submitted that the 2 **O.P.(FC) No.163 of 2014-R** respondent has not established any convincing case for sending the documents and photographs for expert's examination. It is submitted that these were shown to the petitioner when she was cross-examined and she denied the suggestions put by the respondent but it appears that some of these documents were provisionally marked subject to proof. Some of the documents have not been marked in evidence. Apart from the same, it is submitted that the respondent has not adduced any evidence on his side in spite of the direction issued by this Court in Ext.P7 judgment to dispose of the matter finally within three months. It is therefore submitted that the Family Court has passed the order hastily and the application is premature. The learned counsel also relied upon the judgment of the Apex Court in Civil Appeal No.4226 of 2012 wherein Section 65B of the Evidence Act came up for consideration. The learned counsel further relied upon the decision of this Court in **Narayanan v. State of Kerala** [2012 (4) KHC 862] interpreting Section 67 of the Evidence Act especially in para.15. 4. The learned counsel for the respondent Sri Rajeev submitted that the examination of parties was done by a Commissioner and documents were provisionally marked. It is **O.P.(FC) No.163 of 2014-R** 3 true that the respondent's evidence has not commenced and the proof affidavit is yet to be filed. But the learned counsel submitted that in the light of the contentions raised by the respondent and the denial by the petitioner while she was being cross-examined about the contents of these documents, unless expert evidence is allowed to be adduced, the respondent will be put to difficulty to prove his case as pleaded before the Family Court. 5. He also relied on Section 14 of the Family Court Act to contend that the fact that the rigour of Evidence Act may not be there when documents are produced before the Family Court. 6. With regard to the marking of the documents what we find from the affidavit and the petition filed by the respondent as Ext.P9 is that in para.5 what is stated is that the photographs are provisionally marked as Exts.B1 to B8 series. 7. From Ext.P1 order it is seen that the matter was considered when a prayer was made in the I.A No.4508/2013 by the respondent to send two greeting cards and an authorisation letter dt.23.8.09 alleged to be containing a request to conduct the Nikah for an expert opinion so as to examine her signature and thumb impression with admitted signature and handwriting. 4 **O.P.(FC) No.163 of 2014-R** What we find from the operative portion of the order is that the learned Judge has directed to send the greeting cards and the alleged authorisation letter along with Ext.X1. It is evident from the order Ext.P1 that neither the cards nor the authorisation letter have been marked after tendering and proving them in evidence in the proper manner. Therefore, the learned counsel for the petitioner is right in submitting that without proving the documents and the photographs in evidence, the court should not have allowed the applications overruling the objections of the petitioner. 8. Now we will come to the challenge against Ext.P2 order passed in I.A.4509/2013. The learned counsel for the respondent vehemently submitted that Ext.P2 will show that many of the photographs have been `provisionally marked'. What we fail to understand is the meaning of the term “provisional marking”. A document when relied upon by a party and tendered in evidence, should be properly proved. He should subject himself for cross examination by the opposite side. Thereafter if the court feels it proper, after considering the contention of the respective parties and the opposing parties and the requirement of the case, send any of the document for expert 5 **O.P.(FC) No.163 of 2014-R** examination and only at that stage the order like Exts.P1 and P2 could have been passed. In a matter like this where the alleged dispute is with regard to the actual conduct of marriage, and also the the prayer made by the petitioner is to nullify the alleged marriage conducted under the Special Marriage Act as null and void, the pointed issues will have to be considered by the Court before sending any of these items for an expert's examination. 9. The learned counsel for the respondent then submitted that the right of the respondent to seek for appropriate orders after adducing his evidence may be protected. Of course he can file a petition and it is for the court to decide it on merits after hearing both sides as well as considering the objections of the petitioner. 10. As far as the present orders are concerned, we are not satisfied that they have been passed in a proper manner after considering various legal issues and after satisfying that the documents have been proved in evidence. In that view of the matter, Exts.P1 and P2 and the directions therein are set aside. The respondent if so advised will have to complete his evidence in the light of the direction in Ext.P7 judgment expeditiously, in 6 ## **O.P.(FC) No.163 of 2014-R** tune with the precedents and other rules of evidence. The O.P(FC) is accordingly allowed. No costs. Sd/- _**T.R.RAMACHANDRAN NAIR Judge**_ _**Sd/P.V.ASHA Judge**_ rtr/