Jaison K. Sani v. Rasna

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 16TH DAY OF FEBRUARY 2017/27TH MAGHA, 1938** **OP (FC).No. 5 of 2017 (R) --------------------------** **AGAINST THE ORDER IN OP 764/2012 of FAMILY COURT, IRINJALAKUDA PETITIONER: -----------** **JAISON K.SANI S/O.THEKKEKARA KORATH VEETTIL SANI, PULLUR DESOM & VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** **RESPONDENT: ----------** **RASNA D/O.KOKKADAN VEETTIL JOSEPH, PUTHUKKAD DESOM, THORAV VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 301.** **R1 BY ADV. SRI.P.RAMAKRISHNAN R1 BY ADV. SMT.PREETHI KESAVAN R1 BY ADV. SRI.T.C.KRISHNA R1 BY ADV. SRI.C.ANIL KUMAR R1 BY ADV. SMT.ASHA K.SHENOY R1 BY ADV. SRI.PRATAP ABRAHAM VARGHESE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08-02-2017, THE COURT ON 16.02.2017 DELIVERED THE FOLLOWING:** ## **OP (FC).No. 5 of 2017 (R) --------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **-----------------------** **EXT.P1 TRUE COPY OF THE IA NO. 3494/2016 IN OP NO. 764/2012 ON THE FILE OF THE FAMILY COURT, IRINJALAKUDA DATED 3.10.2016** **EXT.P2 TRUE COPY OF THE OBJECTION IN IA NO. 3494/16 IN OP NO. 764/2012 FILED BY THE RESPONDENT BEFORE TEH FAMILY COURT, IRINJALAKUDA, DATED 4.10.2016** **EXT.P3 TRUE COPY OF THE ORDER IN IA NO. 3494/2016 IN OP NO. 764/12 PASSED BY THE FAMILY COURT, IRINJALAKUDA DATED 15.10.2016** **EXT.P4 TRUE COPY OF THE JUDGMENT IN OP (FC) NO. 557/2016 PASSED BY THE HON'BLE COURT DATED 26.10.2016** **EXT.P5 TRUE COPY OF THE PROCEEDINGS DATED 7.12.2016 AND 9.12.2016 IN OP NO. 764/12 ON THE FILLE OF THE HON'BLE FAMILY COURT, IRINJALAKUDA** **EXT.P6 TRUE COPY OF IA NO. 4136/2016 IN OP NO. 764/12 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, IRINJALAKUDA DATED 13.12.16** **EXT.P7 TRUE COPY OF THE ORDER IN IA NO. 4136/2016 IN OP NO. 764/12 PASSED BY THE FAMILY COURT, IRINJALAKUDA DATED 15.12.2016** **RESPONDENT'S EXHIBITS:NIL** **----------------------** **/TRUE COPY/** **.S TO JUDGE** **CL** ## **“CR”** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... O.P.(FC).No.5 of 2017 ........................................ Dated this the 16[th] day of February, 2017. ## **JUDGMENT** ## **K. Ramakrishnan, J:** This original petition is filed by the petitioner challenging Ext.P7 order in IA.No.4136/2016 in OP.No.764/2012 on the file of the Family Court, Irinjalakuda under Article 227 of the Constitution of India. 2. It is alleged in the petition that the petitioner herein is the husband of the respondent and their marriage was solemnized on 22.8.2004 and two children were born to them in that wedlock. Thereafter their relationship strained and the respondent herein filed OP.No.764/2012 for dissolution of marriage on the ground of cruelty against the petitioner under Section 10(1)(x) of the Indian Divorce Act. The respondent also filed MC.No.92/2003 before the same Court claiming maintenance under Section 125 of the Code of Criminal Procedure. She also filed OP.No.294/2013 before the Family Court, Irinjalakuda for return of gold ornaments and money. The petitioner filed GOP.No.907/2013 for custody of the children. He also filed OP.No.261/2014 for restitution of conjugal rights. The petitioner further filed IA.No.2104/2014 in OP.No.764/2012 for joint trial of these cases and that was dismissed by the Court below. The petitioner filed OP(FC). No.603/2014 before this Court and this Court allowed the petition 2 O.P.(FC).No.5 of 2017 and directed joint trial of all the cases. When the trial started, the respondent was examined as PW1 and her witnesses were examined as Pws 2 and 3 and they were partly cross examined. The learned counsel for the petitioner sought time for cross examination of Pws 1 to 3 as the petitioner was unwell, but the Court below did not allow the prayer and the evidence was closed. So the petitioner filed Ext.P1 application as IA.No.3494/2016 to recall Pws 1 to 3 and the respondent herein filed Ext.P2 objection to the same and the Court below allowed the application by Ext.P3 order on condition of payment of cost of Rs.2500/- and Rs.1,500/- each to Pws 1 to 3 respectively within three days. The petitioner could remit only Rs.4,000/- within that time and since the amount was not deposited within three days, the Court below did not permit the petitioner to cross examine Pws1 to 3. So the petitioner filed OP(FC).No.557/2016 before this Court and this Court allowed the petition permitting the petitioner to deposit the amount and to cross examine Pws 1 to 3 vide Ext.P4 order. Pursuant to Ext.P4 order, Pws 1 to 3 were cross examined. Thereafter the petitioner filed proof affidavit and his cross examination started on 1.12.2016 and continued on 2.12.2016, 5.12.2016 and 7.12.2016. On 5.12.2016 after recording of evidence on that day, when the Family Court Judge read over the depositions, the petitioner pointed out certain part 3 O.P.(FC).No.5 of 2017 of the deposition recorded is not what he had actually stated. The Family Court Judge failed to record the submission made by the petitioner as contemplated under Section 146 of the Civil Rules of Practice and insisted the petitioner to sign the deposition and the petitioner refused to sign the deposition recorded on 5.12.2016. Similarly, the petitioner raised objection while the deposition recorded on 7.12.2016 was read over to him stating that some portion of the deposition recorded is not what he had stated, but the Court below did not record the objection raised and insisted to sign the deposition, but the petitioner refused to sign the deposition recorded since his objections were not recorded. The Court below on 9.12.2016 discontinued further cross examination of RW1 for the reason that the petitioner had refused to affix the signature in the deposition recorded on 5.12.2016 and 7.12.2016 evidenced by Ext.P5. Thereafter the petitioner filed IA.No.4136/2016 evidenced by Ext.P6 permitting to continue the cross examination of the petitioner and to correct the errors in the deposition and allow the petitioner to adduce evidence. The Court below dismissed the application vide Ext.P7 order which is under challenge. 3. Heard Sri. Dhinesh Mathew J. Murikan, the learned counsel appearing for the petitioner and Sri.P. Ramakrishnan, the learned counsel appearing for the respondent. 4 O.P.(FC).No.5 of 2017 4. The learned counsel appearing for the petitioner submitted that it is seen from the proceedings paper itself that on 5.12.2016 and 7.12.2016, when the deposition was read over, the petitioner had raised some objection regarding the recording of his evidence, but the Court below without complying with the procedure contemplated under Rule 146 of the Civil Rules of Practice, decided to proceed with the case on the next day also. But since the petitioner did not affix his signature, the evidence was closed without continuing the cross examination of the witnesses. The procedure adopted by the Court below is not proper. So the Court below ought to have recorded the objection and permitted the petitioner to continue the evidence. He had relied on the decision reported in _**Bhagavat Singh v. State of Kerala**_ (2008 (4) KLT 1047) in support of his case. 5. On the other hand, the learned counsel appearing for the respondent submitted that since the petitioner was adamant in not putting the signature after the evidence was read over, the Court below was perfectly justified in closing the evidence as he is not co-operating with the trial of the case. There is no illegality committed by the Court below in this regard. 6. It is an admitted fact that some instances happened in Court while proceeding with the trial of the case on earlier occasions and the petitioner filed application for transfer of 5 O.P.(FC).No.5 of 2017 the case but that was dismissed by this Court on the Judicial side. It is thereafter this Court has directed the Court below to expedite the disposal of the case within a particular time frame. It is also seen from the allegations in the petition itself that Pws 1 to 3 were examined, but a request for adjournment to cross examine the witnesses was declined by the Court below and thereafter the petitioner filed an application to recall those witnesses and that application was allowed on payment of cost of Rs.2,500/-and Rs.1,500/- each for recalling Pws 1 to 3 respectively and thereafter he could deposit only a portion of the amount and since he did not deposit the entire amount within the time, the Court below did not permit the petitioner to recall and cross examine Pws 1 to 3. That was challenged by the petitioner by filing a petition before this Court and as per Ext.P4 judgment, this Court allowed the petitioner to remit the deficit amount and permitted him to cross examine the witnesses. Thereafter the petitioner himself has filed proof affidavit in lieu of his chief examination and his cross examination started on 1.12.2016 and 2.12.2016. On these two occasions, there was no objection from the petitioner in putting his signature in the deposition recorded by the Presiding Officer. But on 5.12.2016, after his cross examination was over for the day, when his deposition was read over, he had pointed out certain facts which according to the petitioner has not been correctly O.P.(FC).No.5 of 2017 6 recorded in the way in which he intended and he did not sign the deposition, but without getting his signature for the day, on 7.12.2016, his cross examination continued. On that day also he had raised some objection regarding the recording of the deposition and refused to sign the deposition without getting the objection rectified. But the Court below instead of recording his objection, since he did not comply with the direction to sign the deposition, closed the evidence of the petitioner. Thereafter he filed the present application to record his objection and to permit him to continue his cross examination, but that petition was dismissed by the Court below by the impugned order. In Ext.P7 itself, the Court below has mentioned as to what transpired, which reads as follows: _“On 5.12.2016 and 7.12.2016, after examination,_ _deposition was read over to the respondent in open court. He denied the correctness of the deposition recorded by me while he was standing in the witness box. Thereafter, when he was asked to affix his signature at the last portion of the deposition, he refused to affix his signature by complaining to the court staff that, he wants to consult his lawyer before affixing the signature. Since, respondent has refused to affix his signature at the foot of his deposition on 5[th] and 7[th] of December, 2016, the court by passing proceedings on 9.12.2016 closed his evidence. Court was of the opinion that, there is no meaning to continue cross examination in case respondent refused to sign at the last_ 7 O.P.(FC).No.5 of 2017 _portion of the deposition”._ ## 7. In paragraphs 6 and 7 of the impugned order, the Court ## below observed as follows: _“6. One of the prayer of petitioner is to allow him to go through his deposition recorded by the court. This court had already read over the deposition to the respondent in open court. Petitioner can file an application to get copy of his deposition recorded by the court. Petitioner can file an application to get copy of his deposition._ _7. Second prayer is to add some statements which were alleged to have been omitted to record by the court and also to correct some of his statements already recorded by the court. However, that stage is already over.”_ ## 8. Rule 146 of the Civil Rules of Practice, Kerala deals with signing of deposition by the witness which reads as follows: ## _“_ _**146. Signing of depositions** :- [(1) After a deposition_ _has been read over to the witness the last page thereof shall be signed in fully 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_ 8 O.P.(FC).No.5 of 2017 _the evidence when the same is read over to him, the Presiding Judge may, instead of correcting the evidence, make a memorandum thereon or the objections made to it by the witness and shall add such remarks as he thinks necessary]._ 9. Sub rule (2) of Rule 146 says that 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 thereon or the objection made to it by the witness and shall add such remarks as he thinks necessary. So it is clear from this that there is a duty cast on the Court instead of correcting the evidence, make a memorandum thereon or objection made to it by the witness and shall add such remarks as he things necessary. 10. There is a similar provision in Section 278 of the Code of Criminal Procedure which reads as follows: _278. Procedure in regard to such evidence when completed:-(1) AS the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected._ _(2) if the witness denies the correctness of any part of the evidence when the same is read over to him, the magistrate or presiding judge may, instead of correcting the evidence, make a memorandum thereon of the objection made_ 9 O.P.(FC).No.5 of 2017 _to it by the witness and shall add such remarks as he thinks necessary._ _(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands._ 11. This Court had occasion to consider this aspect in the decision reported in _**Bhagavat Singh' s case**_ and held that “after the witness has signed the same, he is not entitled to resile from the same. He is expected to point out the same and if such thing was pointed out, the Court below has to follow the procedure provided under Section 278 of the Code of Criminal Procedure and Rule 57 of the Criminal Rules of Practice in the case of criminal cases and Rule 146 of the Civil Rules of Practice, Kerala”. 12. That was a case where the witness after signing the deposition, pointed out certain defects and wanted to correct the same and that was declined by the Court and that was upheld by this Court. This Court has considered the same question and gave direction regarding the procedure to be followed where correction pointed out by the witness in the deposition recorded, in the decision reported in _**Muhammed Kunhi V. Muhammed Haji**_ (2014 (3) KLT 1027) and this Court also relied on the decision O.P.(FC).No.5 of 2017 10 reported in _**Bhagavat Singh's case**_ (supra) and also the decision reported in _**Mirmohammad Omar v. State of West Bengal**_ (AIR 1989 SC 1785) where it has been held that the object of Section 278 of the Code of Civil Procedure is not intended to permit the witness to resile from the statement in the name of correction as follows: _“Object of S.278 is not intended to permit a witness to resile from his statement in the name of correction. Even if the petitioner wants to make some correction in the deposition recorded by the presiding officer, it cannot be corrected by the court as intended by the witness. But as mentioned in S.278 of the Code of Criminal Procedure, it can only be recorded as a memorandum noting that, after the statement was read over, the witnesses has pointed out certain corrections and that correction in the words of witness has to be recorded as such by the presiding officer and he shall add such remarks as he thinks necessary regarding the objection raised by the witness regarding the correctness of the deposition recorded”._ 13. So it is clear from the above decision that even if the petitioner wants to make some correction in the deposition recorded by the Presiding Officer, it cannot be corrected by the Court as intended by the witness but as mentioned in Section 278 of the Code of Criminal Procedure or under Rule 146 of Civil Rules of Practice, Kerala, it can only be recorded as memorandum, noting that after the statement was recorded the witness has pointed out O.P.(FC).No.5 of 2017 11 certain corrections and that corrections in the words of the witness has to be recorded as such by the Presiding Officer and he shall add such remarks as he thinks necessary regarding the objection raised by the witness regarding the correctness of the deposition recorded. The wordings under Section 278 of the Code of Criminal Procedure and Rule 146 of the Civil Rules of Practice are similar. Further in the decision reported in _**Savithri v. Sreenivasan**_ (1987 (2) KLT 388), a Single Bench of this Court has considered the scope of Rule 146 of the Civil Rules of Practice when the witness refusing to sign deposition on the ground for one answer was not correctly recorded and observed as follows: _“When the Presiding Officer is satisfied that there is mistake in recording and he has no doubt as to what exactly that mistake is, he can correct the same without the consent and even against the opposition of the opposite party of the Advocate. He can even ignore the opposition of the witness or the party who cited him or his Advocate. The witness who gave evidence alone is having a voice in the matter and that too is only subject to the decision of the Presiding Officer. The Court has a duty to see that its records are truly and correctly recorded and maintained and nobody is prejudiced by any mistake committed by the court. When the Court feels any doubt whether recording was correct or not then alone the question of ascertaining the views of the party_ 12 O.P.(FC).No.5 of 2017 _or Advocate will arise”._ 14. So it is clear from the above decision also that when an objection has been raised regarding the correctness of the deposition, the Court is expected to invoke Rule 146 of the Civil Rules of Practice in the case of civil cases and Section 278 of the Code of Criminal Procedure and Rule 57 of the Criminal Rules of Practice in criminal cases and as far as possible instead of correcting the deposition, make a memorandum regarding the objections raised as far as possible in the words of the party and record the remarks of the Presiding Officer and then ask the party to sign. If such a procedure is adopted, even if the party is not satisfied with the remarks recorded by the Presiding Officer, then the witness is bound to sign after such procedure is followed by the Presiding Officer. In this case, the Court below had not followed that procedure. So under such circumstances, there is some force in the submission made by the learned counsel for the petitioner that instead of following Rule 146 of the Civil Rules of Practice, the Court below had proceeded with the examination of the witnesses though he had not signed the deposition at the foot after competition of his examination on 5.12.2016 and 7.12.2016 and on that day also when the witness raised his objection regarding the manner in which the deposition was recorded, his cross examination was discontinued by the Court O.P.(FC).No.5 of 2017 13 without noting the objections raised by the petitioner and without making the remarks by the Presiding Officer at the foot of the deposition. So under such circumstances, the Court below had committed illegality in not following the procedure under Rule 146 of the Civil Rules of Practice and as such, the order passed by the Court below discontinuing the cross examination of the witness has to be set aside and the matter has to be remitted to the Court below directing the Court below to follow the procedure provided under Rule 146 of Civil Rules of Practice by recording the objections and making his remarks on the same and then ask the party to sign the deposition and then proceed with further examination of the witnesses. If such a procedure is followed by the Presiding Officer, even if the party is not satisfied with the manner in which the same was recorded or the remarks made by the Presiding Officer, he is bound to sign the deposition and he can only challenge the same if the case goes against him during the appellate stage and not by any other proceedings. So the petition is allowed and Ext.P7 order passed by the Court below is set aside and the matter is remitted to the Court below with a direction to the Presiding Officer, Family Court, Irinjalakuda to record the objection and make his remark regarding the same as contemplated under Rule 146 of the Civil Rules of Practice and then direct the party to sign the deposition as 14 O.P.(FC).No.5 of 2017 contemplated under the Rule. If such a procedure is adopted, then the petitioner is directed to affix his signature in the deposition. Only if he complies with this direction, his further cross examination can be permitted to be proceeded with. Considering the fact that there is a direction to the Court below to dispose of the case within a time frame, parties are directed to cooperate with the Court and comply with the direction and dispose of the case at the earliest possible time. Sd/- **A.M. SHAFFIQUE, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl