Kohensur D. Jayan v. Suresh Kumar R

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 OP (FC) NO. 646 OF 2022** **AGAINST THE ORDERS DATED 14.10.2022 IN I.A.NOS.820 OF 2022, 822 OF 2022 AND 823 OF 2022 IN O.P.NO.2214 OF 2016 ON THE FILE OF THE FAMILY COURT,ERNAKULAM PETITIONER:** **KOHENSUR D. JAYAN AGED 52 YEARS, W/O R. SURESH KUMAR, SHANMUGHA NILAYAM, CHANGAMPUZHA NAGAR P. O., KALAMASSERY, COCHIN, PIN – 682033.** **BY ADVS. AYSHA YOUSEFF MOLLY JACOB JOBI.A.THAMPI M.KABANI DINESH ASHIFA YOUSEFF RABIA BEEGAM T.K. FASHIYA YOUSEFF C.M.EBRAHIM SHOUKATH HUSAIN T.M.MOHAMED YOUSUFF(SR.)** 2 O.P.(FC) No.646 of 2022 ## **RESPONDENT:** **SURESH KUMAR R AGED 55, S/O. A. RAVINDRAN, KANDATHIL HOUSE, 6.4478 (H.NO.119) 12TH STREET, MUSEUM CROSS LANE. CHEMBUKKAVU, THRISSUR, PIN – 680010.** **BY ADVS.** **M.S.UNNIKRISHNAN K.SUNIL ALEENA MARIA JOSE M.ARDRA KRISHNAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 31.01.2023, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.646 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent in O.P.No.2214 of 2016 of the Family Court, Ernakulam has filed this Original Petition under Article 227 of the Constitution of India. She seeks to set aside Exts.P7, P8 and P9 orders dated 14.10.2022 of the Family Court. 2. Pursuant to notice, the respondent entered appearance. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. O.P.No.2214 of 2016 was filed by the respondent before the Family Court, Ernakulam seeking a decree of dissolution of his marriage with the petitioner, which was solemnised on 19.04.2000, on the ground of cruelty. Ext.P1 is a copy of the said original petition. Ext.P1(a) is the objection filed by the petitioner herein. She has filed O.P.No.2255 of 2015 before the Family Court, Ernakulam for a declaration 4 O.P.(FC) No.646 of 2022 that she is the owner of the property described as item No.1 in A-Schedule, to return of gold ornaments and ancillary reliefs. Ext.P2 is a copy of the said original petition. She had also filed M.C.No.242 of 2017 claiming maintenance from the petitioner. In the joint trial held in the said cases, evidence on both sides was recorded. Thereafter, the respondent has filed I.A.Nos.820 of 2022, 822 of 2022 and 823 of 2022, copies of which are Exts.P4, P5 and P6. The petitioner filed counter affidavits to all the said interlocutory applications. After hearing both sides, the Family Court allowed those applications vide separate orders, copies of which are Exts.P7, P8 and P9 respectively. 5. As per Ext.P7 order, the respondent was allowed to call for details pertaining to a prepaid mobile phone connection having number 8714800395 during the period from September 2015 to December, 2021. As per Ext.P8 order, the respondent was allowed to recall and re-examine the petitioner for the purpose of confronting the audio recording contained in Ext.A10 C.D. and in the event of her 5 O.P.(FC) No.646 of 2022 denying her voice in the recording, to send Ext.A10 to the Forensic Science Laboratory, Thiruvananthapuram for ascertaining truth or falsity of the denial. Ext.P9 order directs to send Ext.A26 and A27 diaries, which were already admitted in evidence, to the Forensic Science Laboratory, Thiruvananthapuram along with specimen handwriting of the petitioner for comparison. 6. The learned counsel appearing for the petitioner would submit that filing of those petitions after recording entire evidence on either side is nothing but an attempt to protract the proceedings. It is contended that the mobile phone number mentioned in Ext.P4 application belongs to the respondent himself and without stating any reason the call details of the said mobile phone is sought to be called for. Similarly, no reason has been stated for confronting the audio recording in Ext.A10 C.D. with the petitioner. At any rate, after recording the entire evidence on either side, the respondent cannot be allowed to get the evidence reopened for the purpose of confronting the petitioner with the contents 6 O.P.(FC) No.646 of 2022 of a document, which was produced much earlier to her examination as a witness. 7. The further contention of the learned counsel for the petitioner is that Ext.A10 is an electronic record, but it was produced without a certification under Section 65B of the Indian Evidence Act, 1872. For that reason also the request to confront that document with the petitioner could not be allowed. It is also alleged that the Family Court failed to consider the fact that such an examination will amount to infringement of the right of privacy of the petitioner. 8. As regards Exts.A26 and A27, which are diaries purportedly written by the petitioner, it is urged that the reason why Exts.A26 and A27 are to be examined in the Forensic Science Laboratory has not been disclosed. Therefore, the Family Court went wrong in allowing Ext.P6 application; whereby the request to examine genuineness of Exts.A26 and A27 were allowed. 9. The Apex Court in **Ram Rati v. Mange Ram (Dead) through LRs. and others [(2016) 11 SCC 296]** 7 ## O.P.(FC) No.646 of 2022 held,- “11. The respondent filed the application under Rule 17 of Order XVIII read with Section 151 of the CPC invoking the inherent powers of the court to make orders for the ends of justice or to prevent abuse of the process of the court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. ‘No prejudice is caused to either party’ is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground. 12. In **Vadiraj Naggappa Vernekar (Dead) Through LRs. v. Sharadchandra Prabhakar** 8 O.P.(FC) No.646 of 2022 **Gogate [(2009) 4 SCC 410]** , this principle has been summarized at paragraphs 25, 28 and 29: “25. In our view, though the provisions of Order XVIII Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. xxx xxx xxx 28. The power under the provisions of Order XVIII Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order XVIII Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but 9 O.P.(FC) No.646 of 2022 to clear any ambiguity that may have arisen during the course of his examination.” 13. In **K.K.Velusamy v. N.Palanisamy [(2011) 11 SCC 275]** , the principles enunciated in **Vadiraj** (supra) have been followed, holding at paragraphs 9 and 10: “9. Order XVIII Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order XVIII Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 10. Order XVIII Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order XVIII Rule 17 is 10 O.P.(FC) No.646 of 2022 primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo motu, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.” 10. By virtue of Section 10 of the Family Courts Act provisions in the Code have application to the proceedings before the Family Court, of course, subject to the other provisions in the Act. The principles enumerated by the Apex Court in the aforesaid decisions therefore have application. The call details of a prepaid mobile phone number during the period from September, 2015 to December, 2021 are sought to be brought on record. The contention of the respondent was that although the said mobile phone connection was in his name, it was being used by the petitioner and her daughter. That contention is denied by the petitioner. Those call details could have been brought to court much before the commencement of the trial. The respondent coming forward with a petition after conclusion of the trial for calling for such 11 O.P.(FC) No.646 of 2022 a record, which was in existence earlier and accessible to the court cannot now be called for. The request is a highly belated one and it has the effect of filling up lacuna. 11. As far as the request for confrontation of audio recording in Ext.A10 C.D. is concerned, the same principle is applicable. If the respondent wanted to confront that voice recording, it could have been done during the examination of the petitioner as RW1. It is true that the respondent attempted, but he could not convince the court regarding the requirement of such confrontation. Therefore, his present attempt to recall RW1 for the purpose of confronting the voice recording in Ext.A10 is a belated and repeated attempt, obviously to fill up lacuna in the evidence. In the light of the law laid down in the aforesaid decisions, the request in Exts.P4 and P5 petitions should not have been allowed by the Family Court. Therefore Exts.P7 and P8 orders cannot be sustained. 12. As per Ext.P9, Exts.A26 and A27, which are diaries purportedly written by the petitioner, were directed to be sent to 12 O.P.(FC) No.646 of 2022 the Forensic Science Laboratory, Thiruvananthapuram for comparison. The petitioner while examined in court denied that Exts.A26 and A27 are in her handwriting. The respondent being the husband, genuinely would have expected that the petitioner would admit her handwriting in the said diaries. But she denied. Requirement of examination of the handwriting in the said diaries arose only in that context. Therefore, the request in Ext.P6 application cannot be said to be a belated attempt or without any bona fides. The Family Court rightly had allowed that application as per Ext.P9 order. We are of the view that the said order is correct and not liable to be interfered with. Accordingly, the Original Petition is allowed in part. Exts.P7 and P8 orders dated 14.10.2022 are set aside. The Family Court will take necessary follow up action in terms of Ext.P9 order. **Sd/ANIL K. NARENDRAN, JUDGE** ## **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr 13 O.P.(FC) No.646 of 2022 ## **APPENDIX OF OP (FC) 646/2022** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.2214/2016** - **EXHIBIT P1(A) TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN TO EXHIBIT PI ORIGINAL PETITION** - **EXHIBIT P2 TRUE COPY OF THE ORIGINAL PETITION FILED IN O.P. NO. 2255/2015** - **EXHIBIT P3 TRUE COPY OF M.C. NO. 242/2017 ON THE FILE OF THE FAMILY COURT, ERNAKULAM** - **EXHIBIT P4 TRUE COPY OF THE INTERLOCUTORY APPLICATION (I.A NO. 820/2022 IN O.P.NO. 2214/2016)** - **EXHIBIT P4(A) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN I.A NO. 820/2022 IN O.P.NO. 2214/201** **EXHIBIT P5 TINE COPY OF THE INTERLOCUTORY APPLICATION (I.A. NO. 822/2022 IN O.P. NO. 2214/2016)** - **EXHIBIT P5(A) THE COUNTER AFFIDAVIT FILED BY PETITIONER IN I.A. NO. 822/2022** - **EXHIBIT P6 TRUE COPY OF THE INTERLOCUTORY APPLICATION ( I.A NO. 823/2022 IN O.P. NO. 2214/2016)** - **EXHIBIT P6(A) THE COUNTER AFFIDAVIT FILED BY PETITIONER IN I.A NO. 823/2022 IN O.P. NO. 2214/2016** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14-102022 IN I.A NO. 820/2022 IN O.P. NO. 2214/2016** 14 ## O.P.(FC) No.646 of 2022 **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 14-102022 IN I.A NO. 822/2022 IN O.P.NO. 2214/2016 EXHIBIT P9 TRUE COPY OF THE ORDER DTD.14-10-2022 IN I.A NO.823/2022 IN O.P. NO. 2214/2016**