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2014 Supreme(Mad) 2346
High Court of Judicature at Madras
S. VIMALA, J.
Manoj David @ Mariaraj Thamboo Manoj
Versus
Judy Manoj @ Judia Michael Mary Gilberta
C.R.P. (NPD) Nos. 2584 & 2585 of 2014 & M.P. No. 1 of 2014
Decided On : 07-08-2014
For the Petitioner:I.C. Vasudevan, Advocate.
For the Respondent:V. Deenadayalan, Advocate.
The court emphasized the importance of ensuring fair proceedings and the need for all relevant evidence to be presented, especially in family dispute cases.
Headnote:
Divorce - Cruelty - Indian Divorce Act - Section 32, Section 151 CPC - Order XVIII Rule XVII - Reopening of case - Examination of witnesses - Dismissal of application - Court's analysis of dismissal grounds and decision
Fact of the Case:
Wife filed for divorce on grounds of cruelty, husband filed for restitution of conjugal rights. Husband sought to reopen the case for examination of witnesses, opposed by wife citing delay tactics and court's direction for timely disposal.
Finding of the Court:
Court found dismissal of husband's application for reopening the case unjustified, emphasizing the need for husband's evidence and the court's responsibility to ensure fair proceedings.
Issues: Delay tactics, dismissal of reopening application, responsibility of Family Court to ensure fair proceedings.
Ratio Decidendi: The court emphasized the need for the husband's evidence and the court's responsibility to ensure fair proceedings, setting aside the dismissal and ordering examination and cross-examination of the husband.
Final Decision: The court set aside the dismissal, allowed the husband's application, and ordered examination and cross-examination of the husband on a specified date.
1. O.P.No.2703 of 2007 has been filed by the wife, Mrs. Judy Manoj @ Judia Michael Mary Gilberta before the Family Court, Chennai, seeking the relief of divorce on the ground of cruelty.
1.1. F.C.O.P.No.845 of 2012 has been filed by the husband, Mr.Manoj David @ Mariaraj Thamboo Manoj, before the Family Court, Chennai, seeking the relief of restitution of conjugal rights under Section 32 of the Indian Divorce Act read with Section 151 CPC.
2. I.A.No.882 of 2014 was filed by the husband under Order XVIII Rule XVII read with Section 151 of the Code of Civil Procedure, to reopen the case in F.C.O.P.No.2703 of 2007 (for divorce) for the purpose of examination of witnesses on the side of the respondent / husband and for marking documents.
2.1. Similar application was filed for the same purpose in I.A.No.1070 of 2014 against F.C.O.P.No.845 of 2012.
3. These applications were opposed by the wife by filing a common counter affidavit with the following averments:-
1. Only with an intention to drag on the proceedings, the husband has come forward with these petitions.
2. This Court has given a direction to dispose of the main OP within prescribed time limit and as per the direction, the OP ought to have been disposed of last year itself. However, due to various petitions filed by the husband and his non-cooperation, the OP is still kept pending.
3. Earlier the petition filed by her to recall her and to receive documents on her side in the main OP was dismissed by the Court, only on the ground that the direction of this Court to dispose of the OP had to be complied with. Therefore, the petition filed by the husband, only with a view to drag on the proceedings should not be entertained.
4. No valid reason is stated by the husband for his non appearance regularly before the Court below.
5. This Court, by an order, dated 21.01.2013, passed in CRP (PD) No.136 of 2013 gave a specific direction to dispose of FCOP No.2703 of 2007 within a period of eight weeks from the date of receipt of the copy of the order. The copy of the order was received by the Court on 01.02.2013.
6. The contention of the wife is that, her applications to recall, reopen and marking of documents filed in I.A.Nos.249 of 2014, 88 of 2014, 89 of 2014 and 90 of 2014 were dismissed only on account of the fact that, there was a specific direction by this Court to dispose of the main F.C.O.P. within certain time frame; such being the case, the application to reopen and recall for the purpose of examination of the respondent has rightly been dismissed by the Court below and therefore, the dismissal order should be upheld. This contention cannot be accepted as the wife and her witnesses had already been examined by the Court and the application was only for the purpose of recalling the witnesses who were already examined. So far as the husband is concerned, he himself has not been examined nor any other witness has been examined. The application has been wrongly phrased as "recall". Therefore, the question is whether without the evidence on the part of the husband will it be possible to decide the issue on merits?
6.1. No doubt, there is a direction from this Court for disposal of the main FCOP within certain time frame and that it has to be obeyed. If the direction issued in this case had been implemented the case should have been disposed of by 01.04.2013, i.e., eight weeks from the date of receipt of the copy of the order (the date of receipt, being 01.02.2013).
6.2. Joint trial has been taken and the evidence has been recorded in FCOP No.2703 of 2007. The evidence, on the side of the petitioner / wife, has been closed on 12.03.2014, i.e., nearly one year, after the expiry of the time granted by this Court.
6.3. After granting five adjournments, i.e., on 07.03.2014, 22.03.2014, 27.03.2014, 02.04.2014 and 10.04.2014, the evidence has been closed on the sixth adjourned date i.e. 12.04.2014, and it was adjourned to 17.04.2014 for arguments. At this stage, the husband
