JAISON K.SANI Vs. RASNA

JUDGEMENT

(1.) This original petition is filed by the petitioner challenging Ext.P7 order in IA.No.4136/2016 in OP.No.764/2012 on the file of the Family Court, Irinjalakuda under Article 227 of the Constitution of India.

(2.) It is alleged in the petition that the petitioner herein is the husband of the respondent and their marriage was solemnized on 28.2004 and two children were born to them in that wedlock. Thereafter their relationship strained and the respondent herein filed OP.No.764/2012 for dissolution of marriage on the ground of cruelty against the petitioner under Section 10(1)(x) of the Indian Divorce Act. The respondent also filed MC.No.92/2003 before the same Court claiming maintenance under Section 125 of the Code of Criminal Procedure. She also filed OP.No.294/2013 before the Family Court, Irinjalakuda for return of gold ornaments and money. The petitioner filed GOP.No.907/2013 for custody of the children. He also filed OP.No.261/2014 for restitution of conjugal rights. The petitioner further filed IA.No.2104/2014 in OP.No.764/2012 for joint trial of these cases and that was dismissed by the Court below. The petitioner filed OP(FC). No.603/2014 before this Court and this Court allowed the petition and directed joint trial of all the cases. When the trial started, the respondent was examined as PW1 and her witnesses were examined as Pws 2 and 3 and they were partly cross examined. The learned counsel for the petitioner sought time for cross examination of Pws 1 to 3 as the petitioner was unwell, but the Court below did not allow the prayer and the evidence was closed. So the petitioner filed Ext.P1 application as IA.No.3494/2016 to recall Pws 1 to 3 and the respondent herein filed Ext.P2 objection to the same and the Court below allowed the application by Ext.P3 order on condition of payment of cost of Rs.2500/- and Rs.1,500/- each to Pws 1 to 3 respectively within three days. The petitioner could remit only Rs.4,000/- within that time and since the amount was not deposited within three days, the Court below did not permit the petitioner to cross examine Pws1 to 3. So the petitioner filed OP(FC).No.557/2016 before this Court and this Court allowed the petition permitting the petitioner to deposit the amount and to cross examine Pws 1 to 3 vide Ext.P4 order. Pursuant to Ext.P4 order, Pws 1 to 3 were cross examined. Thereafter the petitioner filed proof affidavit and his cross examination started on 1.12016 and continued on 12016, 5.12016 and 7.12016. On 5.12016 after recording of evidence on that day, when the Family Court Judge read over the depositions, the petitioner pointed out certain part of the deposition recorded is not what he had actually stated. The Family Court Judge failed to record the submission made by the petitioner as contemplated under Section 146 of the Civil Rules of Practise and insisted the petitioner to sign the deposition and the petitioner refused to sign the deposition recorded on 5.12016. Similarly, the petitioner raised objection while the deposition recorded on 7.12016 was read over to him stating that some portion of the deposition recorded is not what he had stated, but the Court below did not record the objection raised and insisted to sign the deposition, but the petitioner refused to sign the deposition recorded since his objections were not recorded. The Court below on 9.12016 discontinued further cross examination of RW1 for the reason that the petitioner had refused to affix the signature in the deposition recorded on 5.12016 and 7.12016 evidenced by Ext.P5. Thereafter the petitioner filed IA.No.4136/2016 evidenced by Ext.P6 permitting to continue the cross examination of the petitioner and to correct the errors in the deposition and allow the petitioner to adduce evidence. The Court below dismissed the application vide Ext.P7 order which is under challenge.

(3.) Heard Sri. Dhinesh Mathew J. Murikan, the learned counsel appearing for the petitioner and Sri.P. Ramakrishnan, the learned counsel appearing for the respondent.