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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Devan Ramachandran, P.V. Balakrishnan, JJ
Shemin S/o Abdul Sathar - Appellant
Versus
Nikhitha D/o Rihitha Raj - Respondent
O.P. (FC) No. 248 of 2025
Decided On : 22-04-2025
(A) Family Courts Act, 1984 - The petitioners challenged the order rejecting their application to reopen evidence and summon a witness in Original Petitions filed in 2016, which were closed and reopened in 2024. The Family Court found that the petitioners failed to assist in tracing the witness. (Paras 2-4)
(B) Evidence - The court emphasized the importance of the petitioners' responsibility to assist in tracing the witness, leading to the dismissal of the petition. (Paras 3-4)
Facts of the case:
The petitioners sought to reopen evidence in ongoing family court proceedings but failed to trace a witness despite being directed to assist.
Findings of Court:
The Family Court acted correctly in rejecting the application due to the petitioners' inability to serve summons on the witness.
Issues: The main issue was whether the Family Court erred in rejecting the application to reopen evidence.
Ratio Decidendi: The court held that the Family Court acted appropriately as the petitioners did not fulfill their obligation to assist in tracing the witness.
Result: Original Petition dismissed.
JUDGMENT :
DEVAN RAMACHANDRAN, J.
1. The petitioners are the respondents in O.P. Nos. 661/2016 and 725/2016 before the learned Family Court, Kollam. It is admitted that both the said Original Petitions have been filed by the respondent and are being jointly tried.
2. The petitioners challenge Ext.P11 order which rejected his application, namely I.A. No. 10/2025, to reopen evidence and to summon a particular witness. When one examines Ext.P11, it is rendered evident that the Original Petitions are of the year 2016 and that evidence in it were closed; but re-opened in the year 2024, on the application of the petitioners. They thereupon cited a witness, but who could not be traced out; and the learned Family Court has recorded that, even though the petitioners were directed to assist the Amin to trace him out, it was not done. The Court has, therefore, rejected the interim application, reiterating that the Original Petitions are of the year 2016.
3. The learned counsel for the petitioners - Sri. Arun Babu, argued that the impugned order is in error because the witness in question had been served summons earlier prior to the evidence having been closed; but conceded that what the learned Court has recorded is factually true.
4. We have no doubt that the learned Family Court has acted without error because, though the petitioners cite a person as witness, it is admitted - even before us - that he could not be served summons on. We do not see what else the learned Court could have done, but to have given an opportunity to the petitioners to assist the Amin to trace the witness. When the witness remains untraceable, and without being able to be served summons on, the learned Family Court could have done nothing more.
5. This Original Petition is, therefore, dismissed.
The Family Court correctly dismissed the petitioners' application to reopen evidence due to their failure to assist in tracing a witness.
Point of law: In any case, it is settled legal position that no litigant can be denied the opportunity to prove his case, unless it is clear that presence of such witnesses is not necessary at all. T....
The court determined that witness testimony regarding financial transactions is critical for the proper resolution of family disputes.
Court directs consideration of pending evidence reopening application before final judgment.
Compliance with prevailing COVID SOPs and granting opportunities for completing evidence.
The court emphasized that a witness's relevance must be clearly identified for their examination to be allowed.
Closing evidence is impermissible when a party has made reasonable efforts to produce a duly served witness, ensuring the right to a fair trial is preserved.
The court established that the trial court must take coercive steps to secure witness attendance when a party has fulfilled procedural obligations under Order 16 Rule 10 CPC.
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