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2018 DIGILAW 101 (KER)

Anil Kumar v. Shari

2018-01-29

A.M.BABU, K.HARILAL

body2018
JUDGMENT : K. Harilal, J 1. Appellant is the 1st respondent in O.P.No.570/2006 of the Family Court, Kottarakkara filed by the respondent herein. The said original petition was filed seeking realization of money and gold ornaments from the appellant. The parties are referred to as in the original petition. 2. The 1st petitioner is the wife of the 1st respondent and 2nd petitioner is the minor daughter born in the said wedlock. According to the 1st petitioner, their marriage was solemnized on 16.9.2002 and at the time of marriage, she was given Rs.25,000/- and 20 sovereigns of gold ornaments by her parents. The said gold ornaments were entrusted with the 1st respondent. Thereafter the 1st respondent was given another Rs.1,00,000/- on his demand. However, within a short period, the marital relationship between the 1st petitioner and the 1st respondent has become strained and they separated. 1st respondent did not return the gold ornaments, which were entrusted with him, when she left the matrimonial home. In the above context, the original petition was filed seeking realization of Rs.1,25,000/- and 20 sovereigns of gold ornaments from the respondents. 3. The respondents resisted the claim contending that the allegation that the 1st respondent was given Rs.1,25,000/- and the petitioner was given 20 sovereigns of gold ornaments at the time of marriage is absolutely false. No amount was given to him and no gold ornament was entrusted with him after the marriage. According to them, they never made any demand for money or gold ornaments or any other assets. Therefore the 1st petitioner is not entitled to realize any amount or gold ornaments from the respondents. Thus, they prayed for dismissal of the original petition. 4. On the aforesaid pleadings both parties adduced evidence, which consists of oral testimony of PW1 and CPW1 and the documentary evidence Exts.A1 to A4 and B1. On appraisal of the aforesaid evidence, the Family Court allowed the original petition and the petitioner was allowed to realize 10 sovereigns of gold ornaments and Rs.25,000/- from the respondents on a finding that the parties were sent for counselling and during the course of counselling, CPW1 had admitted that he will return 10 sovereigns of gold ornaments and Rs.25,000/- to the petitioner and this amounts to an admission as to receipt of the amount and the gold ornaments. This appeal is filed challenging the legality and correctness of the aforesaid finding. This appeal is filed challenging the legality and correctness of the aforesaid finding. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The sum and substance of the arguments advanced by the learned counsel for the appellant is that the findings whereby the Family Court granted a decree allowing the petitioner to realize 10 sovereigns of gold ornaments and Rs.25,000/- from the respondents, are legally unsustainable. According to him, the court below went wrong by granting a decree on the basis of the report filed by the counsellor stating that during the course of counselling, the 1st respondent offered to give 10 sovereigns of gold ornaments and Rs.25,000/-. The said report or the information therein can never be taken as a basis for granting a decree after arriving at a finding that the evidence adduced by the petitioners are unreliable and they failed to prove the case in evidence. 7. Per contra, the learned counsel for the respondent advanced arguments to justify the findings whereby the petitioner was allowed to realize 10 sovereigns of gold ornaments and Rs.25,000/- from the respondents. The learned counsel invited our attention to Section 14 of the Family Courts Act and submitted that the information received from the report submitted by the counsellor also can be taken as an admission from the part of the 1st respondent in respect of the receipt of gold ornaments and money. Further it is contended that the said provision is incorporated in the Family Courts Act to dilute the rigour of the Indian Evidence Act. According to him, in view of Section 14 of the Family Courts Act, the Family Court can be justified in grating a decree on the basis of the information received from the report submitted by the counsellor. 8. Going by the impugned judgment, it stands undisputed that after analyzing the evidence on record, the Family Court arrived at a finding that no reliance can be placed on the evidence of PWs 1 and 2 in respect of or receipt of money and gold ornaments by the 1st respondent and the petitioners miserably failed to prove the averments in the original petition in respect of the grant of gold ornaments and the receipt thereof by the respondents. After arriving at such a finding, instead of dismissing the application the Family Court allowed the application to the extent to realize 10 sovereigns of gold ornaments and Rs.25,000/- from the respondents on the basis of the information received from the report submitted by the counsellor. 9. So the question to be considered is, can the Family Court be justified in granting a decree on the basis of the information gathered from the report submitted by the counsellor, where the petitioner failed to prove his case. We have gone through Section 14 of the Family Courts Act and found that the Family Court is given power to receive any report, statement, documents, information or matter as evidence 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. At the first blush, it may appear that the information from the report submitted by the counsellor also can be taken as evidence to determine the dispute on merits. But, Rules 29 to 33 of the Family Courts (Kerala) Rules assume relevancy and significance in the above context. Rule 29 of the said Rules says, any information gathered by the counsellor, any statement made before the counsellor or any notes or report prepared by the counsellor shall be treated as confidential and the counsellor shall not be called upon to disclose this information, statement, notes or report to any court except with the consent of both parties. As per Rule 30, the counsellor shall not be permitted to give evidence in any Court in respect of the information, statement, notes or report referred to in Rule 29. But exception is given to a report relating to the home environments of the parties concerned and the personalities and relationship with their children in order to assist the court in deciding the question of custody or guardianship and also for determining the amount of maintenance to be granted to one of the parties. More importantly as per Rule 33, the counsellor shall not be asked to give evidence and shall not be cross-examined in any court, in respect of the report so made. 10. More importantly as per Rule 33, the counsellor shall not be asked to give evidence and shall not be cross-examined in any court, in respect of the report so made. 10. What emerges out from a combined reading of Rules 29 to 33 of the Family Courts (Kerala) Rules, 1989, in juxtaposition, is that no reliance could be placed on the information to be gathered from the report submitted by the counsellor, to determine the disputes on merits, after the failure of conselling procedure except for the specific purposes, the question of custody or guardianship of children and quantum of maintenance, alimony, specified under the provisos to Rule 30 of the Rules, even if it would assist to deal effectually with the dispute, and the same shall not be read in evidence, for arriving at a decision on merits. In short, Rules 29 to 33 of the Family Courts (Kerala) Rules amount to an exception to section 14 of the Family Courts Act and such information gathered from the report submitted by the counsellor would stand excluded from the expressions 'report' and 'information' referred to in Section 14 of the Family Courts Act. 11. The learned counsel for the petitioner further submitted that even if the information gathered from the report cannot be taken as evidence, it can be taken as admission of the 1st respondent under Section 17 of the Indian Evidence Act. 12. We are unable to countenance the above argument. According to Section 23 of the Evidence Act, in civil cases, no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. So the confidentiality insulated under Rule 29 of the Family Courts (Rules) Rules indicates a circumstance falling under Section 23 of the Evidence Act from which the court can infer that the parties agreed together that evidence of it should not be given. Therefore any statements made by a party before the counsellor during the counselling procedure contemplated under Rules 24 to 31 cannot be taken or accepted as admissions falling under Section 17 to 20 of the Evidence Act. 13. Therefore any statements made by a party before the counsellor during the counselling procedure contemplated under Rules 24 to 31 cannot be taken or accepted as admissions falling under Section 17 to 20 of the Evidence Act. 13. That apart, even otherwise, any admission made before the counsellor also would fall under the expression 'confidential information' which cannot be disclosed before the court except with the consent of both parties. So it cannot be read in evidence as admission of a party falling under Section 17 of the Evidence Act without the consent of both parties and thereby stands insulated under Rule 29 of the said Rules. 14. In the above view, we have gone through the report submitted by the counsellor. In this report, it is stated that the 1st respondent offered 10 sovereigns and Rs.25,000/- towards a settlement. We are of the opinion that even if the said offer is taken at its face value and accepted, that cannot be treated as an admission falling under Section 17 of the Indian Evidence Act from the 1st respondent. 15. In the above analysis, we find that the Family Court went wrong by placing reliance on the information gathered from the report submitted by the counsellor for granting a decree allowing the petitioners to realize the value of gold ornaments and money despite the fact that the petitioners miserably failed to prove their case in evidence. 16. We find that the entire judgment rests on legally unsustainable findings and the impugned judgment is liable to be set aside. Consequently we set aside the impugned judgment and decree passed thereunder.