Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 84 (TRI)

Biplab Dhar v. Panna Saha

2016-03-30

DEEPAK GUPTA, S.C.DAS

body2016
JUDGMENT : Deepak Gupta, J. This appeal by the husband is directed against the judgment dated 25th July, 2011 passed by the learned Judge, Family Court, Agartala, West Tripura in Title Suit (RCR) 200/2007. Though the title of the judgment says it is the judgment passed in Title Suit (RCR) 200/2007, in the operative portion of the judgment it is also mentioned as follows: “I am of the view that it is a fit case where a decree for restitution of conjugal rights as prayed for by the petitioner should be allowed, but the prayer for a decree of divorce made by the respondent should be rejected giving a space for reunion between the husband and wife considering the welfare of the minor baby and accordingly, issue No.‘II’ is decided in favour of the petitioner but against the respondent.” 2. The undisputed facts of the case are that the petitioner and the respondent are Hindus and were married as per Hindu rites on 12.06.2005. The wife Smt. Panna Saha instituted a petition for restoration of conjugal rights before the Family Court on 28.11.2007. This RCR petition remained pending in the Family Court for a long time and it appears that there was some dispute regarding the paternity of the child and some time was taken for getting a DNA test conducted. After the DNA test was conducted it was found that the child was born from the husband. The report of the DNA test was opened on 11.11.2009. 3. Thereafter various adjournments were given time and again for hearing/orders. Though we do not understand what orders were to be passed or what hearing was to be done because without recording evidence no hearing could have been done. On 02.07.2010 it was ordered that the case be listed on 27.08.2010. Right from 04.12.2009, 07.01.2010, 21.01.2010, 19.02.2010, 22.03.2010, 05.05.2010 and 02.06.2010 nothing has been stated as to why the case was being adjourned except to state that the case is adjourned for hearing/order. This is not the manner in which an order should be passed by a Judicial Officer. In every order it must be clearly stated why the matter is adjourned and on what issue the matter is to be heard and on what issue the orders are to be passed. 4. This is not the manner in which an order should be passed by a Judicial Officer. In every order it must be clearly stated why the matter is adjourned and on what issue the matter is to be heard and on what issue the orders are to be passed. 4. In the RCR petition the following issues were framed: (I) Whether the petition is maintainable in its present form and nature? (II) Whether being the legally married husband, the respondent tortured the wife-petitioner in many ways and also by blaming her for carrying pregnancy caused by another person and now not allowing the petitioner and the newly born son to live with the husband-respondent or whether it is the petitioner-wife who was found leaving her matrimonial home now and then without the permission of the husband causing much inconvenience to the family of the husband and ultimately deserted her ailing husband when he was in stitched and bandaged position due to operation of spinal chord causing much mental shock to the husband? (III) Whether the petitioner is entitled to get a decree as prayed for and whether the prayer made by the respondent for a decree of divorce be allowed? 5. On 02.07.2010, the case was adjourned to 27.08.2010 for P.Ws/D.Ws. Then the matter was adjourned for reconciliation. On 05.01.2011 the petitioner i.e. the wife in the RCR petition was present along with one witness. The respondent, i.e. the husband was present along with four witnesses. They were examined and the evidence was closed and the matter was listed for arguments on 01.03.2011. On 01.03.2011 the parties were permitted to file written argument. Thereafter written argument was filed on 25.04.2011. The case was then fixed on 18.05.2011, 03.06.2011, 13.06.2011, 21.06.2011, 16.07.2011 and 19.07.2011 for judgment and as many as 6(six) dates were taken for pronouncement of judgment and finally the judgment was pronounced on 25.07.2011. 6. Here it would be pertinent to mention that the husband filed a petition for divorce on 17.03.2010. The RCR petition had already been pending for three years when the divorce petition was filed. This divorce petition was numbered as T.S.(Divorce) 91/2010. Written statement was filed on 02.07.2010. Date was given for reconciliations and on 18.11.2010 the case was fixed on 05.01.2011 for P.Ws/D.Ws. The order of 05.01.2011 shows that the petitioner husband was present along with four witnesses. This divorce petition was numbered as T.S.(Divorce) 91/2010. Written statement was filed on 02.07.2010. Date was given for reconciliations and on 18.11.2010 the case was fixed on 05.01.2011 for P.Ws/D.Ws. The order of 05.01.2011 shows that the petitioner husband was present along with four witnesses. The wife-respondent was also present along with one witness. They were examined and the evidence was closed. This is the same date which was fixed in the RCR petition. 7. This divorce petition has been disposed of by order dated 25.07.2011 which reads as follows: “This case has been instituted by the petitioner Sri Biplab Dhar against his wife-respondent Smti Panna Saha u/s. 13 of the Hindu Marriage Act, 1955 for getting a decree of divorce. 2. The facts of the case asserted by the petitioner and written statement submitted by the respondent is the same as was narrated in case bearing No. TS(RCR) 200/07 being disposed of today along with this case and hence, I find no necessity to reproduce the same. However, in view of the findings and decisions passed in related case between the parties bearing No.TS(RCR) 200/07, the present case filed by the petitioner for a decree of divorce is rejected with a direction to the present petitioner Sri Biplab Dhar (Banik) to take back his wife and son to his house and lead peaceful conjugal life.” 8. It is, therefore, apparent that the Judge, Family Court disposed of the RCR petition as well as the divorce petition by the judgment delivered in the RCR petition. We may also point out that in the divorce petition no issues were framed. The RCR petition was filed on the ground that the husband had turned out the wife from the matrimonial home and had raised false allegations of adultery against the wife by alleging that the child born to the wife was not the child of the husband. The wife offered to get a DNA test conducted which was conducted and as observed earlier the child was found to be the child of the husband. The husband had contested this petition on various grounds including the ground that the wife had deserted her matrimonial home causing serious mental problem to the opposite party and his family members and that she was not serious about her family life and affairs. The husband had contested this petition on various grounds including the ground that the wife had deserted her matrimonial home causing serious mental problem to the opposite party and his family members and that she was not serious about her family life and affairs. Various other allegations were made which we need not record specifically but basically the allegation was that the husband was unfit to indulge in sexual intercourse and the wife insisted that he should have sexual intercourse with her and on this allegation it was alleged that the child was not that of the husband. It was further alleged that on 05.02.2006 the wife deserted the husband and went to her parental home. Again she came back to her matrimonial home for a few days on 30th April but again left the home for her parental house. The main stand of the husband in this petition was with regard to the paternity of the child. 9. As far as the divorce petition is concerned, the allegations made therein seeking divorce are not totally identical. The allegations with regard to the husband not being able to have sexual intercourse or the wife having deserted are similar. But in this case the husband also alleged that the wife wanted to live separately and she also threatened to commit suicide if the husband does not live separately. Certain other allegations were made and it was on the grounds of cruelty and desertion and not on the ground of adultery that divorce was sought. Unfortunately, though issues were framed in the RCR petition, no issues were framed in the divorce petition. 10. Another aspect of the matter is that witnesses in both the cases were examined on the same date. The statements of the witnesses in both cases are identical. P.W.1, the wife in the RCR petition has been shown to be D.W.1 in the divorce petition only by changing the alphabet ‘P’ to ‘D’. Similarly the D.Ws. 1 to 4 in the RCR petition were made as P.Ws 1 to 4 in the divorce petition by changing the alphabet ‘D’ to ‘P’. The change is visible to the naked eye. 11. A Court in a given case may feel that two petitions can be disposed of by recording evidence in one case which may be common to both the cases. The change is visible to the naked eye. 11. A Court in a given case may feel that two petitions can be disposed of by recording evidence in one case which may be common to both the cases. The Court may also dispose of both the cases by a common judgment on the basis of such common evidence recorded. However, before doing that the Court must pass a reasoned order consolidating both the cases and should clearly mention that the evidence led in one case shall also be read as evidence in the other. We must remember that in cases before the Family Court the parties were not represented by counsel. They should have been specifically told by the Family Court that the evidence led in one case would be also treated as evidence in the other and they should have also been clearly informed that the husband will have a right to lead evidence in regard to the divorce petition in the RCR petition itself. Nothing of this sort was done and the cases were fixed separately for evidence. The evidence has been recorded in highly improper manner and the Opposite Party has not been allowed to cross examine the witnesses. 12. Section 15 and 16 of the Family Courts Act read as follows: “15. Record of oral evidence. In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 16. Evidence of formal character on affidavit. (1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.” 13. (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.” 13. A bare perusal of these provisions shows that though the Family Court may not record the evidence of the witnesses at great length, but a memorandum of substance of the deposition must be recorded and signed both by the witness as well as by the Presiding Judge. 14. A learned Single Judge of this Court as a Judge of the Agartala Bench of the then Gauhati High Court while sitting in a Division Bench in Manidipa Bhowmik Vrs. Mihir Datta, (2013) 1 TLR 35, had held as follows: “36. No doubt, usually in the civil courts, unless the opportunity of the cross-examination is given, the examination in chief are not as a whole admitted in the evidence save and except where some admission appears. But in this case what we curiously find that the learned Judge, Family Court, South Tripura, Udaipur, has deviated from the normal rule of recording evidence but he has done the same uniformly and following a very simple method of inquiry. The respondent (the appellant herein) was even allowed to adduce her witnesses first and thereafter the petitioner (the respondent herein) was allowed to adduce his witnesses. No grievance surfaces from the record stated to have demonstrated by either of the parties in this regard. This court is also not oblivious of the fact that usually in the proceedings of the Family Court, no lawyer is permitted to represent the parties unless of course if permitted by the court. In view of this, even though this procedure cannot be claimed to be foolproof, cannot be even questioned at this stage by the appellant. However, this procedure is not advisable to be followed by the Family Courts, rather the Principal Counselor of the Family Court where no legal practitioner is permitted to represent the case of the parties would demonstrate the rights of cross-examination available to the parties and how to exercise the same before recording of the evidence in a detached manner without making any reference to the subject-matter of the case. It is also expected that the adverse party would be asked by the Family Court to question or to suggest or to bring contradiction or omission of previous admission from the witnesses appearing for the one party or from the other party.” 15. The question whether a party, even before the Family Court has a right to cross examine the witnesses or not was considered by a Division Bench of this Court in Anjana Dey (Mandal) Vrs. Subal Mandal, (2014) 1 TLR 773, wherein after discussing the entire law of the point, the Court observed as follows: “12. One of the main issues which arises for consideration is whether the right to cross-examine witnesses is available to the parties under the Family Courts Act. A perusal of the record of the present case shows that in the divorce case filed by the husband, as many as 6(six) witnesses were examined on behalf of the husband and 8(eight) witnesses on behalf of the wife. If we go through the statements of the witnesses, we find that no opportunity was given to the opposite party to cross-examine the witnesses. On perusal of the statements of the witnesses examined on behalf of the wife, it is apparent that the wife who was not represented by a Counsel had no knowledge as to how a witness has to be examined and the statements of her witnesses are recorded in such a manner which gives the impression that no effort was being made either by the Presiding Officer of the Court or the Counsellor to assist the lady in examining her witnesses. This has, in our opinion, resulted in gross miscarriage of justice. 13. The Family Courts were established with a view to make the procedure less technical and the approach more family oriented. The object was that such matrimonial disputes should be settled by mutual consent of the parties and the effort is towards settlement and not towards adjudication. As pointed out above, lawyers are not permitted to appear. 14. Our experience has been that when lawyers are not permitted to appear, it is the women who suffer more. In Indian society, husbands are normally better educated than the wives. In many cases, especially in the lower strata of society, the women would be illiterate or barely educated whereas the men would be educated and also employed. 14. Our experience has been that when lawyers are not permitted to appear, it is the women who suffer more. In Indian society, husbands are normally better educated than the wives. In many cases, especially in the lower strata of society, the women would be illiterate or barely educated whereas the men would be educated and also employed. The men would be also more worldly wise. Therefore, though a man may be in a position to prepare pleadings, lead evidence and examine and cross-examine witnesses in many cases, a woman who may not have even stepped out of her house or village would be overawed by the atmosphere in a Family Court and would be unable to match her husband.” 16. Thereafter, this Court further held as follows: “20. The right of cross-examination is a very important right. In many cases the Family Courts are recording the testimony by way of affidavit. When affidavits are tendered in evidence, it has been found that more often than not these are affidavits in the language of Counsel where many facts relevant and irrelevant are stated. It is necessary that such witnesses be cross-examined. Even where a witness appears in person before the Court, the opposite party has a right to cross-examine such witness. Without cross-examination, the veracity of the statement made in the examination-in-chief cannot be tested. At the same time, the art of cross-examination is not so simple. It takes years of experience for a lawyer to learn how to effectively cross-examine a witness. How can we expect an illiterate villager to cross-examine the witnesses? As far as cross-examination is concerned, the same must be invariably allowed in every case. 21. De Smith in his treatise on Judicial Review of Administrative Action has held that cross-examination of witnesses must be permitted. This has become a part of the rule of the Audi Alteram Partem. 22. Wade in his exposition of Administrative Law has pointed out that failure to allow cross-examination by an objector leads to quashing of the administrative decision.” 17. In this case none of the parties have been allowed to cross examine the witnesses and on this ground alone both the judgments and decrees have to be set aside. We are also pained with the manner in which the case has been dealt with. Presiding Officers of Family Courts must be sensitive to the needs of the parties. In this case none of the parties have been allowed to cross examine the witnesses and on this ground alone both the judgments and decrees have to be set aside. We are also pained with the manner in which the case has been dealt with. Presiding Officers of Family Courts must be sensitive to the needs of the parties. As pointed out earlier dates were being given one day after the other without even informing the parties why a date is being given. These are the cases where legal representation is not allowed unless specifically allowed. As far as the present cases are concerned the parties were both unrepresented by counsel. They should have been told on every date why the case was being adjourned to the next date. If the case is just adjourned for orders/hearing without informing the parties what is the purpose of the adjournment, it is just wastage of the time of the Court and wastage of the time of the parties and does not serve any purpose whatsoever. The manner in which the evidence of one case has been tagged in the other case is totally illegal. It is highly improper and unethical. It is obvious that the evidence were not recorded in both cases. It was only recorded in one case and what has been done is that the evidence recorded in the RCR petition has been photostatted and in the photostate copy the word P.W.1 has been changed to D.W.1. No doubt, the signatures of the parties have been obtained on these photocopies, but these are parties unrepresented by counsel and they are not aware why they are being asked to sign certain documents. This virtually amounts to interpolation in the Court record. 18. As pointed out above, no issues were framed in the divorce petition. If issues were framed in the RCR petition then issues were also required to be framed in the divorce petition. In fact, we are of the view that issues should always be framed even in cases before the Family Courts. Only if issues are framed, can parties realize on what issues they have to lead evidence. The purpose of framing issues is to restrict the recording of the evidence to the issues and finally to restrict arguments and decision of the case to the issues itself. This was also not done in the present case. 19. Only if issues are framed, can parties realize on what issues they have to lead evidence. The purpose of framing issues is to restrict the recording of the evidence to the issues and finally to restrict arguments and decision of the case to the issues itself. This was also not done in the present case. 19. What is even more shocking is that in the judgment delivered, the learned Presiding Officer of the Family Court has stated that the following issues arise for decision and these issues are as follows: (I) Whether the petition is maintainable in its present form and nature? (II) Whether being the legally married husband, the respondent tortured the wife-petitioner in many ways and also by blaming her for carrying pregnancy caused by another person and now not allowing the petitioner and the newly born son to live with the husband-respondent or whether it is the petitioner-wife who was found leaving her matrimonial home now and then without the permission of the husband causing much inconvenience to the family of the husband and ultimately deserted her ailing husband when he was in stitched and bandaged position due to operation of spinal chord causing much mental shock to the husband? (III) Whether the petitioner is entitled to get a decree as prayed for and whether the prayer made by the respondent for a decree of divorce be allowed? 20. We have searched both the records of the trial Court and we find that in the RCR petition 3(three) other issues were framed which we have already quoted above and in the divorce petition no issues were framed. Therefore, this observation that the following issues arise for determination is not based on the issues framed but probably on the basis of what the Judge felt at the time when he was dictating the judgment. 21. We have, therefore, no hesitation in holding that the procedure followed by the Presiding Officer was totally illegal. It was foreign to all Canons of Jurisprudence. It was violative of the principles of natural justice. Even in an inquiry conducted under the Family Courts Act, rules of natural justice have to be followed. 21. We have, therefore, no hesitation in holding that the procedure followed by the Presiding Officer was totally illegal. It was foreign to all Canons of Jurisprudence. It was violative of the principles of natural justice. Even in an inquiry conducted under the Family Courts Act, rules of natural justice have to be followed. If the rules of natural justice are bound to be followed in all administrative inquiries, we see no reason why the rules of natural justice should not be followed in judicial inquiries including inquiries held under the Family Courts Act or under the Motor Vehicles Act. It is true that in these inquiries technical rules of evidence and the technical part of the CPC may not apply but the basic principles of the law of evidence and the basic principles of the law of procedure have to be followed and the rules of natural justice have to be followed in all cases. 22. In view of the above discussion we are clearly of the view that the impugned judgment is wholly illegal and is bound to be set aside and is accordingly set aside. The matter is, therefore, remanded to the learned Presiding Officer, Family Court who shall now also frame issues in the divorce suit. Thereafter if he wants to consolidate both the petitions he will pass a specific order consolidated in both the petitions and then on the basis of the issues he shall permit the parties to give evidence. If the parties apply for being representation of counsel then the said application shall be considered in the light of the law laid down in Anjana Dey (Mandal) (supra). 23. It is, however, made clear that the husband shall continue to pay maintenance to the wife as well as to the child as per orders already passed. 24. Both the parties are directed to appear before the Judge, Family Court on 28.04.2016 and the Judge, Family Court is requested to dispose of the matter as early as possible and in any event not later than 30th November, 2016. 25. Since Mr. R. Dutta has been appointed as Legal Aid Counsel the Registry shall supply a certified copy of the judgment to him free of cost. 26. The appeal accordingly stands disposed of. 27. A copy of this judgment be placed in the service record of the Presiding Officer of the Family Court.