SHIBU KUMAR B. Vs. SMEJA K.

JUDGEMENT

(1.) THE petitioner has approached this Court praying that the order passed in I.A.42/2012 in O.P.17/11 on the file of the Family Court, Kasaragod be set aside and also for a direction to allow the said I.A. Petitioner is the petitioner in O.P.545/10 on the file of Family Court, Kannur. The said Original Petition is filed under Section 12(1)(c) of the Hindu Marriage Act, 1955, praying for annulling the marriage between the parties. The ground taken is that the respondent is mentally ill. It is submitted that the case has been transferred to the Family Court, Kasaragode. Ext.P2 is the counter affidavit filed by the respondent. Petitioner filed Ext.P3 list of witnesses. The first witness is the petitioner himself. Proposed witnesses 2 to 5 are medical practitioners. Counter affidavit is produced as Ext.P4. But, it is common case that the counter affidavit produced is not the counter affidavit relating to the matter. Ext.P5 is the impugned order. In Ext.P5, the Family Court refers to the decision reported in Kokkanda B.Poondacha v. Ganapathi, (2011 (1) KLT SN 106 SC) wherein, it is stated that it would be a prudent exercise of discretion by court to insist that a party filing list of witnesses should briefly indicate purpose of summoning particular person as a witness. It is stated that except stating that "to prove the case", nothing else is mentioned as to what is the purpose of their examination that counsel for the respondent submitted that the attempt of the petitioner is to make use of the medical documents produced by the respondent/wife and to give negative evidence in advance to suit his case. It is further stated in the order that when the respondent/wife has to examine the doctors for proving her documents, it is unnecessary to summon those doctors for the sake of the petitioner/husband to prove it negatively.

(2.) THE contention of the petitioner appears to be that the petitioner will be deprived of substantiating his case OP(FC) 942/12 3 unless the witnesses are examined to prove neurological disorder and epileptic attacks. Learned counsel for the respondent would point out that the respondent herself intends to examine witnesses 2 to 5 and if the petitioner can always cross -examine the said witnesses and the witnesses of the respondent cannot be asked to give evidence in advance. It may be true that the Apex Court has held that it will be prudent exercise to insist that a person seeking to examine a witness must indicate the reasons. In this case, it is mentioned in the counter affidavit that the doctors who were proposed as witnesses 2 to 5 have treated the respondent. In such circumstances, it may be necessary to establish the petitioner's case that they should be examined. The court below did not permit examination of witnesses 2 to 5, but has permitted examination of witness no.1, who is none other than the petitioner. In the circumstances of the case and in view of the stand taken by the respondent, we record the submission OP(FC) 942/12 of the learned counsel for the respondent that the respondent will examine witnesses 2 to 5 as her witnesses. We, however, make it clear that in case the respondent does not actually examine witnesses 2 to 5, it will be open to the petitioner to examine these witnesses as his witnesses.