SHEMEERA, D/o KHADER KUNJU v. SHANI

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 4TH DAY OF APRIL 2018 / 14TH CHAITHRA, 1940 OP (FC).No. 512 of 2017 AGAINST THE ORDER DATED 10.8.2017 IN I.A.NO.1046 OF 2017 IN O.P.NOS.259, 280 & 476 OF 2014 OF THE FAMILY COURT, CHAVARA PETITIONER: SHEMEERA, D/O KHADER KUNJU, AGED 30 YEARS, KUTTIYIL VEEDU, KANNIMEL MURI, SOORANADU SOUTH VILLAGE, KUNNATHOOR TALUK. BY ADVS.SRI.SAM ISAAC POTHIYIL SRI.A.S.SREEJAN SRI.K.AMAR RAGH SMT.N.S.HASNA MOL SRI.N.MANEESH SRI.A.R.ASSIM SRI.BENOY JOSEPH SRI.RAJEEV RAJADHANI RESPONDENT: SHANI, PUTHEN VEEDU, EDAVANASSERY MURI, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK – 690 519. BY ADV. SRI.B.KRISHNA MANI ADV. SMT.N.V.SANDHYA ADV.SRI.R.T.PRADEEP ( _AMICUS CURIAE_ ) THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21-3-2018, THE COURT ON 04-04-2018 DELIVERED THE FOLLOWING: OP (FC).No. 512 of 2017 (R) APPENDIX ## PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER DATED 13.7.2017 IN M.C.96/2014. EXHIBIT P2 COPY OF THE I.A.NO.1046/2017 IN O.P.NOS.259/2014, 280/2014 AND 476/2014. EXHIBIT P3 COPY OF THE ORDER DATED 10.8.2017. -TRUE COPY- PS TO JUDGE “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## OP(FC) No.512 of 2017 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of April, 2018 ## Judgment ## Chitambaresh, J. 1.“It has been laid down again and again that one should be very careful before permitting the issue of a commission which will deprive the other side of the great advantage of having a witness cross-examined before the face of the Court itself.” observed Odgers J. in Sreenivasa Aiyyangar v. Ranga Aiyangar (AIR 1927 Madras 524). The above observation still holds good in marital disputes before a Family Court. - 2.The petitioner and respondent are wife and husband OPFC512/2017 -: 2 :- between whom cases are pending on the file of the Family Court, Chavara the details of which are as follows: i. O.P.No.259/2014 filed by the wife for return of the gold ornaments and for realisation of money. ii. O.P.No.280/2014 filed by the husband for prohibitory injunction against alienating the property. iii. O.P.No.476/2014 filed by the wife seeking custody of the children born in the wedlock. The Family Court has ordered joint trial of the cases and also appointed an Advocate Commissioner to record evidence of the witnesses as contemplated under the provisions of the Code of Civil Procedure, 1908 ('CPC' for short). The petitioner thereupon filed I.A.No.1046/2017 for permission OPFC512/2017 -: 3 :- to adduce oral evidence before the Court itself than having it recorded by an Advocate Commissioner. The Family Court has turned down the request and dismissed the interlocutory application which order is impugned in this original petition invoking the supervisory jurisdiction. 3.The petitioner contends that the provisions of the CPC shall apply to the suits and proceedings before a Family Court only subject to the provisions of the Family Courts Act, 1984 ('the Act' for short). It is the prerogative of the Judge and the Judge alone of the Family Court to record a memorandum of the substance of what the witness deposes which cannot be exercised by an Advocate Commissioner. The petitioner adds that sensitive issues crop up in marital disputes and that an Advocate Commissioner shall not be appointed to record evidence in every case. The petitioner submits that the power to record evidence in the instant case ought not to have been delegated to the Advocate Commissioner in the OPFC512/2017 -: 4 :- wake of her vehement objection for the same. 4.The respondent contends that the evidence of the parties can be taken either by the Court or by the Advocate Commissioner appointed for which there is an element of discretion vested in the Court. The Advocate Commissioner is even empowered to put it on record his remark about the demeanor of the witnesses during examination which shall be decided by the Court at the time of hearing. The enabling provisions have been brought into the statute book by the amendment of CPC by Act 46 of 1999 (with effect from 1.7.2002) as approved by the Supreme Court. The respondent defends the original petition by reiterating that speedy justice envisaged by the amended provisions of the CPC is being thwarted by the petitioner. - 5.We heard Mr Sam Isaac Pothiyil, Advocate on behalf of the petitioner and Mr B.Krishnamani, Advocate on behalf of the OPFC512/2017 -: 5 :- respondent as well as Mr R.T.Pradeep, Advocate as amicus curiae in the case. 6.Rule 4 of Order XVIII and Rule 4-A of Order XXVI of the CPC inserted by Act 46 of 1999 (with effect from 1.7.2002) enable the Court to issue commission in any suit or proceedings for the examination of witnesses. The legality of the amendment to the CPC has been upheld in Salem Advocate Bar Association's cases reported in (2003) 1 SCC 49 and (2005) 6 SCC 344. Either all the evidence can be recorded in Court or by the Advocate Commissioner or partly by the Court and partly by the Advocate Commissioner as the Court directs. The Court has to apply its mind to the facts, nature of allegations, nature of evidence and importance of the particular witness in order to determine as to how the examination should proceed. The power is to be exercised with great circumspection and no hard and fast rule has been laid down to control the OPFC512/2017 -: 6 :- discretion of the Court to appoint an Advocate Commissioner to record the evidence. 7.But the provisions of the CPC shall apply to the suits and proceedings before a Family Court subject to the provisions of the Act only even though it can devise its own procedure under Section 10 thereof. It shall not be necessary for the Judge of the Family Court to record the evidence of witnesses at length and it would suffice if a memorandum of the substance of the deposition is recorded. This is explicit from Section 15 of the Act which is as follows: “ 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 OPFC512/2017 -: 7 :- memorandum shall be signed by the witness and the Judge and shall form part of the record.” Rule 48 of the Family Courts (Kerala) Rules, 1989 ('the Rules' for short) is also to the same effect and is as follows: “ 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.” 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 demeanor of the witnesses under Rule 4(4) of Order XVIII of the CPC. OPFC512/2017 -: 8 :- Section 15 of the Act read with Rule 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. 9.The Family Court often misses the woods for the trees when faced with voluminous evidence recorded by the Advocate Commissioner most of which may not be relevant for deciding the issue. This can be obviated by enabling the parties to adduce evidence before the face of the Court itself whereupon the Judge can himself monitor the process of OPFC512/2017 -: 9 :- examination of the witnesses. Unwanted questions can be weeded out and the parties directed to focus on the cardinal issues which is precisely the intent of Section 15 of the Act and Rule 48 of the Rules. Marital disputes have a personal touch depending on the character of the warring spouses and their social background which the Judge of the Family Court need to assess first hand. It is trite law that the demeanor of the witnesses have to be watched before assessing their credibility for the Court to rest its conclusion on their evidence in the verdict. The life and future of the parties in a marital dispute are at stake and the resolution of such disputes cannot be treated on par with adjudication of other disputes by the Civil Court. 10.It is of course open to the parties to waive their right to have the witnesses examined before the face of the Court and have the entire deposition recorded verbatim by the Advocate Commissioner appointed. We are reminded of the OPFC512/2017 ## -: 10 :- recent decision in Santhini v. Vijaya Venketesh [2017(4) KLT 415 (SC)] wherein the Supreme Court has deprecated the practice of video-conferencing in all marital disputes. It was held therein as follows: “45. The language employed in Section 11 of the 1984 Act is absolutely clear. It provides that if one of the parties desires that the proceedings should be held in camera, the Family Court has no option but to so direct. This Court, in exercise of its jurisdiction, cannot take away such a sanctified right that law recognizes either for the wife or the husband.” Similarly the desire of the wife or the husband to adduce evidence on the face of the Court is whittled down and smothered if the Court directs the evidence to be recorded by the Advocate Commissioner in all cases. 11.To sum up: OPFC512/2017 -: 11 :- i. The Family Court shall have the evidence of the witnesses recorded by the Advocate Commissioner appointed only if either parties to the lis have no objection to adopt such course of procedure. ii. The witnesses shall be permitted to be examined before the face of the Court itself if either parties to the lis insist on such procedure in which event the Judge need record substance of the deposition only. 12.The impugned order of the court below dismissing I.A.No.1046/2017 filed for permission to adduce evidence before the face of the Court itself is set aside and the interlocutory application is allowed. The court below is directed to record the evidence of the witnesses by itself without delegating it to the Advocate Commissioner and proceed further in accordance with law. We do appreciate OPFC512/2017 -: 12 :- the fairness of Mr B.Krishnamani, Advocate and the eloquence of Mr R.T.Pradeep, Advocate as amicus curiae in the argument of the case. The original petition is allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/260318