Back
2022 Supreme(Online)(KER) 46291
HIGH COURT OF KERALA
MARY JOSEPH, J
GRACY VINCENT – Appellant
Versus
VINCENT @ PAUL – Respondent
OP(Crl.) 53 2021
ADV T.SHIHABUDHEEN, SRI.GEORGE POONTHOTTAM (SR.), SMT.NISHA GEORGE
A court must ensure compliance from a witness for document production when summoned, unless valid reasons for non-compliance are given.
Headnote:
Maintenance - Family Law - Code of Criminal Procedure, 1973 - Sections 125(1)
Fact of the Case:
The petitioner filed for maintenance under the Code of Criminal Procedure, but the family court dismissed applications seeking evidence, claiming no merit. The petitioner argued that essential documents were not produced by the summoned witness, impacting the case.
Finding of the Court:
The court found the family court unjustified in dismissing the applications as it failed to compel the witness to produce relevant documents, thereby prejudicing the petitioner’s case. The importance of evidence was emphasized for confirming maintenance claims.
Issues: Whether the family court's dismissal of the petitions for lack of merit and failure to enforce compliance by the witness was justified.
Ratio Decidendi: The court stated that when a witness is summoned for document production, it is the duty of the court to ensure the documents are presented unless a valid justification for non-production is provided.
Final Decision: The orders of the family court were set aside, and the matter was remanded for reconsideration.
JUDGMENT
Dated this the 31st day of August, 2022 This petition is filed under Article 227 of the Constitution of India seeking to set aside Ext.P3 and Ext.P6 orders passed by Family Court, Thrissur (for short ‘the court below’). Ext.P3 is an order passed by the court below in M.P.No.445/2020 and Ext.P6 is an order passed by the court below in M.P.Nos.128/2021 & 129/2021 in M.C.No.350/2017. Parties to this petition will hereinafter be referred to as the petitioner and the respondent in accordance with their status before the court below in the respective petitions.
2. The petitioner and respondent in the Original Petition on hand are the petitioner and the respondent in M.C. No.350/2017 as well as the Criminal Miscellaneous Petitions. M.C.No.350/2017 was filed by the petitioner under Section 125 (1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to get monthly maintenance allowance from the respondent. M.C was posted for examination of the witness summoned. Copies of the petitions referred to above are produced alongwith the petition on hand as Exts.P2 and P5 respectively. Both M.P’s were heard by the court below and those were dismissed by Exts.P3 and P6 orders, which are under challenge herein.
3. M.P.No.1940/2019 was an application filed by the petitioner calling for Bank account statements from IndusInd Bank. That application was allowed by the court below and summons was ordered to the petitioner directing production of the documents called for. Copy of the summons is produced alongwith the petition on hand as Ext.P14(b). It was specifically directed by the summons issued to produce Bank account statements for ten years preceding the date of the order. The Manager of IndusInd Bank appeared before the court below and he was examined. But he failed to produce the entire documents called for. He has produced only Bank account statements relating to some period against the direction issued by the court below. In the above circumstances, petitioner has filed an application as M.P.No.445/2020 seeking for issuance of warrant against the witness for the reason that the directions issued from the court below was disobeyed by him by failing to produce the entire documents. That application was dismissed by the court below. M.P.No.129/2021 was also filed seeking for adjournment of the case till the documents called for are produced by the witness. The court below has dismissed that application by Ext.P6 order. The court below is highly unjustified in passing Ext.P3 and P6 orders. Once summons is issued to a witness for production of a document, the court below is obliged to see that it is produced by the witness unless cogent reason is furnished by the witness for its non-production. Court below failed in its duty and therefore, that issuance of warrant against the witness and thereby procurement of the document was sought.
4. The witness summoned has disobeyed the direction issued by the court to produce the account statements for a period of ten year by producing the document only for a period lesser than that. The non-production of the document called for, was not explained satisfactorily. M.P.No.445/2020 filed by the petitioner was dismissed by the Court stating that it carries no merit.
5. The petitioner has also filed an application seeking for postponing the examination of the petitioner to a date after production of the document by the witness. When summons was issued to a witness for production of a document as prayed for by the petitioner, the court must see that the document called for is produced by the witness. By failing to take necessary measures to compel the witness for production of the document and by proceeding to dispose of the M.C., the court below has acted in a manner to shut out the evidence sought to be adduced by the party. The dismissal of the application filed by the petitioner to postpone the examination of the petitioner till the document called for is produced by the witness has als
