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2013 DIGILAW 1084 (MP)

Madhvi Sharma v. Pushpendra Sharma

2013-09-10

SUJOY PAUL

body2013
JUDGMENT By filing this petition under Article 227 of the Constitution of India, the petitioner/wife assailed the order passed by the Family Court dated 6.8.2013 passed in Case No. 33A/10 (HMA). By the said order, the Court below allowed the applications preferred under order 6 Rule 17 C.P.C. and order 7 Rule 14 C.P.C. Assailing this order, Shri H.K. Shukla, learned counsel for the petitioner, submits that the Court below has erred in allowing the application under order 7 Rule 14 C.P.C. and taking the photographs on record. By taking assistance from Section63 and 65 of Evidence Act, it contended that secondary evidence can be permitted to be lead in a manner prescribed under Section 63 and 65 of the Act. Unless the ingredients of the said provisions of Evidence Act are satisfied, the secondary evidence cannot be taken on record. 2. The amendment application which was allowed by the impugned order is also challenged by contending that the matter was at the stage of evidence and after commencement of the trial, it was not open for the Court below to allow the amendment preferred under Order 6 Rule 17 C.P.C. Lastly, it is contended that the Court below should have allowed the application under Section 151C.P.C. (Annexure P-6). 3. Per contra, Shri Santosh Agrawal, learned counsel for the respondent, supported the order and relied on certain provisions of the Evidence Act and the Family Court Act, 1984. 4. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 5. I deem it proper to first deal with the amendment application, which has been allowed. A bare perusal of the amendment application shows that it is based on a subsequent event. The respondent has mentioned that on 24.6.2012 the wife again married Shri Ashwini Sharma. Thus, it cannot be disputed that the amendment is based on subsequent event. Immediately thereafter, on 5.7.2012 the amendment application was filed and therefore, I am unable to hold that it is not filed with due diligence. In that event, the proviso to Order 6 Rule 17 C.P.C. cannot provide any assistance to the petitioner. More so, when the petitioner has not chosen to file any reply to the amendment application to dispute the averments mentioned therein. 6. In that event, the proviso to Order 6 Rule 17 C.P.C. cannot provide any assistance to the petitioner. More so, when the petitioner has not chosen to file any reply to the amendment application to dispute the averments mentioned therein. 6. Considering the aforesaid, in the opinion of this Court, the Court below was well within its authority in allowing amendment application which was necessary for lawful adjudication of the matter. Although Shri H.K. Shukla relied on Sections 63 and 65 of the Act, it is apt to quote Section 14 of the Family Court Act, 1984, which reads as under:-- “14. Application of Indian Evidence Act, 1872.- A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). (Emphasis supplied). 7. A bare perusal of this provision makes it clear that evidence Act is not made applicable in a mechanical manner. The discretion is vested with the Family Court to receive any evidence, any report, any relevant statement, documents, information etc, which is necessary for its assistance to deal effectually with a dispute. It is made permissible in the statute whether or not such documents are relevant or admissible in the Evidence Act. Thus, the powers are vested with the Family Court to take those documents on record. Needless to mention that the Family Court is bound to function as per the enabling provisions and the statue by which it was created. Evidence Act cannot be pressed into service mechanically in proceedings of an appeal under Section 14 of the said Act. Consequently, the argument advanced in this effect must fail. 8. Lastly, the petitioner has prayed for a relief by preferring an application under Section 151 of the Act. The Court below opined that the respondent is under no obligation to produce Shri Ashwini Sharma and in the opinion of this Court, the said finding is a plausible finding. 9. The power under Article 227 of the Constitution of India cannot be exercised as an appellate authority. If the order impugned suffers from any jurisdictional error, palpable perversity or manifest procedural irregularity, interference can be made. 9. The power under Article 227 of the Constitution of India cannot be exercised as an appellate authority. If the order impugned suffers from any jurisdictional error, palpable perversity or manifest procedural irregularity, interference can be made. Another view is possible, is not a ground for interference under Article 227 of the Constitution of India. The interference has to be made sparingly with a view to ensure that the Court below acts within the bounds of the authority. Interference cannot be made in a routine manner or on a drop of hat. This view is taken by the Apex Court in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 . I find no ingredients on which interference can be made in this petition. Petition fails and is hereby dismissed.