SHAFEEK v. NAFEELA and STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2021-08-05
Court Decision / Holding: The transfer petition is dismissed.
Final Disposition: Dismissed the transfer petition (Tr.P.(C) No.204 of 2021) and allowed underlying Family Court proceedings to continue at Tirur.

Parties to the Case

Appellants / Petitioners

SHAFEEK

Respondents

NAFEELA D/O SIDDIQ
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• SHAFEEK (Party‑In‑Person)

Counsels for Respondents

• NOUSHAD THOTTATHIL

Case Synopsis & Summary

This is a Transfer Petition (Civil) Tr.P.(C) No.204 of 2021 filed in the Kerala High Court by Shafeeq challenging proceedings in Family Court, Tirur, Malappuram connected with OP 368/2015, MC 243/2015 and OP 91/2018. The petitioner, who appears in person and also claims to represent his mother, contends that certain cross‑examination answers were recorded incorrectly or not at all, and that he was compelled to sign the deposition. He seeks transfer of the matters away from the Family Court, asserting a likelihood of bias and denial of justice. The respondents oppose the petition, arguing the petitioner seeks to protract the trial. The Court, after considering a report from the Family Court, noted that during examination the petitioner gave lengthy narratives rather than direct answers, and the Court was asked to record only a memorandum of the substance of the deposition under Section 15 of the Family Courts Act, 1984, with Rule 48 of the Family Court Rules permitting memoranda or tape recording. The judgment cites Shameera v. Shani to explain that the Family Court Judge has the forensic ability to assess witnesses by recording a memorandum of substance rather than the full deposition. The Court found no reason to doubt the impartiality of the proceedings and dismissed the transfer petition, allowing the cases to proceed in Tirur.

Provisions of Law Cited

Family Courts Act, 1984 – Section 15 (Record of oral evidence)Family Court Rules – Rule 48 (Evidence)Code of Civil Procedure, Order XVIII, Rule 4(4) (cross-examination/recording)

Legal Doctrines & Maxims

The chaff from the grain in assessing a witness (forensic skill of the Judge)
Sensitive issues like cruelty, adultery, desertion or custody of children are better adjudicated when witnesses are cross-examined before the face of the Court (as observed by Odgers J)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that deposition in the Family Court was not recorded correctly during cross‑examination; he claims signs and answers were forced; he seeks transfer for a fair and unbiased hearing, arguing failure of the deposition procedure and highlighting Section 15 of the Family Courts Act and Rule 48 of the Family Court Rules as controlling to ensure a memorandum of substance rather than a verbatim record.

Contentions of Respondents

The respondent’s counsel submits that the petitioner’s aim is to protract the proceedings. The Court’s report shows the petitioner often gave lengthy, narrative answers rather than direct replies, and the court appropriately sought concise responses. The defense relies on established Family Court procedure under the Family Courts Act and Rules, asserting no bias and affirming the ongoing trial in Tirur.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Shameera v. Shani	2018(2) KLT 268	Positive	Cited to support the proposition that a Family Court is empowered to record a memorandum of the substance of deposition rather than the entire transcript, preserving the judge’s ability to assess credibility.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943 TR.P(C) NO. 204 OF 2021** **OP 368/2015, M.C.No.243 of 2015 and O.P.No.91 of 2018 OF FAMILY COURT, TIRUR, MALAPPURAM** ## **PETITIONER/S:** SHAFEEK AGED 42 YEARS S/O ABDUL SALAM, THEKKEPARAMBIL HOUSE, 15/172, KOLLENPADI, PONNANI P.O.MALAPPURAM DISTRICT, KERALA STATE, PIN-679 577. BY ADV SHAFEEK(Party-In-Person) ## **RESPONDENT/S:** 1 NAFEELA D/O SIDDIQ, MAYIN VEETIL HOUSE, BAITHANOOR, KOLLENPADI, KADAVANADU P.O.PONNANI, MALAPPURAM DIST, PIN-679 584. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY ADV NOUSHAD THOTTATHIL THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Tr.P.(C) No.204 of 2021** 2 ## **ORDER** **Dated this the 5[th] day of August, 2021 The petitioner is the respondent in O.P.No.368 of 2015, M.C.No.243 of 2015 and O.P.No.91 of 2018 pending on the files of the Family Court, Tirur. The cases are filed by the petitioner's wife/respondent herein for maintenance, return of money and gold ornaments and divorce. The petitioner is appearing in person in all the cases and is conducting the case on behalf of his mother also. The cases are being tried jointly and the petitioner's evidence is over. The transfer petition is filed alleging that some answers given by the petitioner during his cross-examination was not recorded correctly. The mistakes were noticed only when the deposition was handed over to the petitioner for his signature. Thereupon, the mistakes were brought to the notice of the court** **Tr.P.(C) No.204 of 2021** 3 **and request made to correct the answers. Petitioner alleges that, except one mistake, which even the learned Counsel for the respondent agreed, was answered differently by the petitioner, the other mistakes were not corrected and according to the petitioner, was forced to sign the deposition, despite his objection. The petitioner therefore apprehends that he may not get justice from the Family Court, Tirur.** **2. The allegations are stoutly opposed by the learned Counsel for the respondent. It is submitted that the attempt of the petitioner is to protract the trial.** **3. In the report called for by this Court, the learned Family Court Judge has stated that during petitioner's examination, instead of giving direct answers, the petitioner would give a detailed narration of events unconnected with the** **Tr.P.(C) No.204 of 2021** 4 **question. The Court therefore intervened and asked him to give specific answers, which had irked the petitioner. The petitioner was neither harassed nor his answers recorded incorrectly. In the nature of the allegation raised, it is essential to have a look at Section 15 of the Family Courts Act, which reads as under:** _**“15. Record of oral evidence.-- In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record.”**_ **Rule 48 of the Family Court Rules, which is also** ## **contextually relevant, is extracted hereunder:** _**“48. Evidence. -- The Court shall prepare a memorandum of the substance what the witness deposes as prescribed under Section 15 of the Family Courts Act, 1984. It is open to the Court to tape record the evidence.”**_ ## **The above provisions leave no room for doubt that** **Tr.P.(C) No.204 of 2021** 5 **the Family Court is not expected to record the deposition of the witnesses in their entirety. The reason for authorising the Family Court to record only a memorandum of the substance of what the witnesses depose, has been succinctly explained by a Division Bench of this Court in** _**Shameera v. Shani [2018(2) KLT 268]**_ **, the relevant portion of which reads as under:** _**“** 8. The Judge of the Family Court is so given the power to record only a memorandum of the substance of what the witness deposes only because he alone can remove the chaff from the grain in assessing a witness. That forensic skill of the Judge cannot be usurped by the Advocate Commissioner even though he can record remarks regarding the demeanour of the witnesses under R.4(4) of Order XVIII of the C.P.C. S.15 of the Act read with R.48 of the Rules imply that evidence of the witnesses shall normally be recorded in the Family Court itself whereupon the Judge need record only a memorandum of the substance of the deposition. Sensitive issues like cruelty, adultery, desertion or custody of children can be better adjudicated only when the witnesses are cross-examined before the face of the Court itself as observed by Odgers J. (supra). Half of the case is heard when the evidence of the witnesses are recorded in open court which is quite different from the oral testimony recorded by the Advocate Commissioner._ _**”**_ **4. Having voiced his grievance and apprehensions before this Court, the petitioner** **Tr.P.(C) No.204 of 2021** 6 **fairly submitted that he has no objection in the cases being continued at the Family Court, Tirur itself, provided the proceedings are conducted in a judicious and unbiased manner.** **5. On a consideration of the arguments advanced and on perusal of the records, I find no reason to assume that the proceedings will not be conducted in an unbiased and judicious manner. As the cases are being conducted by the petitioner on his own, his anxiety and apprehension is understandable. The report of the learned Family Court Judge shows that the apprehension is misplaced.** **In the result, the transfer petition is dismissed.** **sd/V.G.ARUN JUDGE** Scl/ **Tr.P.(C) No.204 of 2021** 7 ## **APPENDIX OF TR.P(C) 204/2021** ## PETITIONER ANNEXURE |ANNEXURE A1|TRUE COPY OF THE ORDER OF HON'SUPREME| |---|---| ||COURT OF INDIA IN THE SLP CRL.3923/2016| ||WHICH ONE QUASHED PROCEEDINGS UNDER DV| ||ACT 2005.| |ANNEXURE A2|TRUE COPY OF THE ORDER OF HON'SUPREME| ||COURT OF INDIA PASSED IN CRIMINAL| ||APPEAL NO 1364 OF 2018-ARISING OUT OF| ||SLP CRL.1885/2018 WHICH ONE QUASHED 498| ||A MATTER CASE| |ANNEXURE A3|TRUE COPY OF THE ORDER OF THE HON'HIGH| ||COURT OF KERALA IN CRL MA 1/2018 IN| ||CRL.MC 8015/2018 THAT STAYED THE| ||PROCEEDINGS IN FIR 290/2018| |ANNEXURE A4|TRUE COPY OF THE ORDER OF THE HON'HIGH| ||COURT OF KERALA IN CRL MA 1/2018 IN| ||CRL.MC 8015/2018 WHICH ONE EXTENDED| ||INTERIM ORDER INIT FURTHER ORDERS| |ANNEXURE A5|TRUE COPY OF ORDER OF HON'HIGH COURT OF| ||KERALA IN CRL.MC 1416/2019 WHICH ONE| ||QUASHED THE ORDER OF HON.JFCM COURT,| ||PONNANI IN CMP 3082/2018| |ANNEXURE A6|TRUE COPY OF ORDER OF HON'MAGISTRATE| ||COURT TIRUR WHICH ONE ORDERED TO| ||HANDOVER THE INVESTIGATION OF THE CRIME| ||582/2019 OF TIRUR P.S TO SUPERIOR| ||OFFICER| |ANNEXURE A7|TRUE COPY OF THE CHIEF AFFIDAVIT OF| ||THIS PETITIONER FILED BEFORE THE| ||HON'FAMILY COURT TIRUR IN THE MATTER OP| ||3668/2015 MC 243/2015 OP 91/2018| |ANNEXURE A8|TRUE COPY OF THE CROSS EXAMINATION| ||STATEMENT OF THIS PETITIONER IN THE| ||MATTER OP 368/2015 MC 243/2015 OP| ||91/2018 PENDING BEFORE THE HON'FAMILY| ||COURT, TIRUR| |ANNEXURE A9|TRUE COPY OF THE CHIEF AFFIDAVIT OF THE| 8 ## **Tr.P.(C) No.204 of 2021** COMPLAINANT OF OP 368/2015 MC 243/2015 OP 91/2018 FIELD IN THE HON'FAMILY COURT, TIRUR ANNEXURE A10 TRUE COPY OF THE CROSS EXAMINATION STATEMENT OF THE COMPLAINANT OF OP 368/2015 MC 243/2015, OP 91/2018 PENDING IN THE HON'FAMILY COURT, TIRUR