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2021 DIGILAW 1652 (MAD)

Vijaya Krishnan Nair v. Suchitra Nair

2021-06-03

C.V.KARTHIKEYAN

body2021
ORDER : This Civil Revision Petition has been filed questioning the order dated 14.09.2020 in I.A.No. 1491 of 2018 in O.P.No. 3865 of 2010 which original petition is pending on the file of the II Additional Family Court, Chennai. 2. The said Interlocutory Application had been filed by the petitioner herein under Order 1 Rule 10 of CPC r/w Section 17 of Hindu Marriage Act, 1956 to implead the second respondent herein as the second respondent in O.P.No. 3865 of 2010. 3. O.P.No. 3865 of 2010 had been filed by the first respondent herein/wife under Section 13(1)(i-a) and under Section 26 of the Hindu Marriage Act, 1955 seeking dissolution of the marriage held on 25.04.1997 on the ground of cruelty and to grant permanent custody of the two minor children. The said Original Petition has been pending for more than 10 years before the Family Court without any effective progress, though counter has been filed. 4. The Interlocutory Application had been filed in the year 2018. The said application was dismissed by order dated 14.09.2020 giving rise to the present Revision Petition. 5. Heard Mr. V. Ramamoorthy, learned counsel for the revision petitioner and Ms. Shaikh Mehrunisa, learned counsel for the first respondent. There was no appearance on behalf of the second respondent. 6. Even before entering into a discussion on the facts, it is evident from the order now under revision that several Interlocutory Applications had been filed and many of them had been numbered and disposed of but there are also several Interlocutory Applications pending numbering. The revision petitioner herein is represented by his power of attorney agent before the Family Court and the first respondent is appearing as party in person. 7. In brief, the marriage between the petitioner and the first respondent was held on 25.04.1997 at Guravayur Sree Krishna Temple, Guruvayur, Kerala. They were blessed with two children born on 25.10.2001 and 26.01.2004. Necessity for the first respondent to file the original petition before the Family Court, seeking dissolution of the marriage and the veracity of the statements thereunder are subject matter of trial and it may not be appropriate on the part of this Court to examine their respective merits vis-a-vis the counter filed. 8. It may be sufficient to point out that the grievances between the parties run deep. 9. 8. It may be sufficient to point out that the grievances between the parties run deep. 9. I.A.No. 1491 of 2020 had been filed by the revision petitioner as stated under Order 1 Rule 10 of the Code of Civil Procedure r/w Section 17 of Hindu Marriage Act, 1956 to implead the second respondent herein as a proposed second respondent in the original petition. 10. It is the contention of the revision petitioner that he had financed stay of the first respondent at Chennai and with the money sent by him from Canada and also by his father, who is also staying abroad, the first respondent had purchased a house. Subsequently, it appears that he had given a power of attorney in her favour to deal with the said property. She had exercised her rights as an agent and had conveyed the property to the second respondent. 11. Questioning that conveyance, the petitioner herein has instituted C.S.No. 443 of 2013 before the Original Side of this Court which suit is still pending. There had been other proceedings also between the parties particularly, M.C.No 28 of 2014 which had been filed by the first respondent herein taking advantage of Sections 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act 2005. 12. A Petition in Crl.O.P.No. 11423 of 2014 had been filed by the revision petitioner and another petition before this Court seeking to quash the said proceedings. The said request was refused in so far as the present revision petitioner was concerned and therefore, a Special Leave Petition was filed before the Hon'ble Supreme Court. The order of the Hon'ble Supreme Court is quite instructive regarding the conduct of the revision petitioner and it is extracted in full. A little more into the background facts shall be delved in later. “Upon hearing the counsel the Court made the following ORDER : On 03.01.2019, following order was passed by this Court: “This matter was taken up yesterday but was adjourned to enable the learned counsel for the petitioner to seek instructions whether the petitioner would deposit some amount towards the maintenance and up-keep of respondent-wife and children. Mr. Nagamuthu, learned Senior Advocate submits that the petitioner is willing to deposit Rs.2 lakhs within four weeks from today, which amount shall, upon deposit be made over to the respondentwife. Mr. Nagamuthu, learned Senior Advocate submits that the petitioner is willing to deposit Rs.2 lakhs within four weeks from today, which amount shall, upon deposit be made over to the respondentwife. We also direct the petitioner to deposit further sum of Rs. 3 lakhs within eight weeks from today. List on 01.03.2019. It is a matter of record that despite said order, no money has been deposited by the petitioner. We do no see any reason to interfere in the matter. The special leave petition is, accordingly, dismissed. Considering the fact that the case under the Domestic Violence Act has been pending for last 5 years, we direct the Trial Court to conclude the proceedings as early as possible and preferably within 3 months from today. Pending application(s), if any, shall stand disposed of.” 13. M.C.No. 28 of 2014, the petition filed under the Domestic Violence Act attained finality by order dated 22.01.2020 passed by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, whereby the learned Magistrate had directed the petitioner herein to pay compensation of Rs.20/- lakhs to the first respondent and another sum of Rs.50,000/- towards litigation expenses and a protection order was also granted prohibiting the petitioner herein from committing any acts of Domestic Violence against the first respondent and further directing him to pay monthly maintenance of Rs.30,000/- each to his two sons till they attain the age of majority and further directing him to pay the arrears maintenance amount of Rs.42/- Lakhs within three months and to pay the maintenance amount of Rs.30,000/- each to his two sons on or before the 05th day of every succeeding English calender month. It is not known whether the petitioner has complied/ is complying with the said order. But again, the nature of the order tells on his conduct as appreciated by the learned Magistrate. 14. It is also seen that the first respondent herein had also filed I.A.Nos. 2546 & 2547 of 2017 in O.P.No. 3865 of 2010 seeking alimony of Rs.5/- crores and monthly maintenance of Rs.1/- lakh for herself and her two children and Rs.5/- lakhs towards litigation expenses. It is subsequent to the filing of these two applications that I.A.No. 1491 of 2018 came to be filed by the revision petitioner herein. 15. 2546 & 2547 of 2017 in O.P.No. 3865 of 2010 seeking alimony of Rs.5/- crores and monthly maintenance of Rs.1/- lakh for herself and her two children and Rs.5/- lakhs towards litigation expenses. It is subsequent to the filing of these two applications that I.A.No. 1491 of 2018 came to be filed by the revision petitioner herein. 15. After relating his grievances practically from the date of marriage till the next about 12 years, the petitioner had finally stated that the first respondent had conveyed the property as aforesaid exercising her right as power agent to the second respondent. He also stated that he had come to understand that the first and second respondents were business partners and were also having a relationship which is not to be encouraged and therefore stated that the second respondent should be made a party to the proceedings in O.P.No. 3865 of 2010. 16. Counter had been filed by the first respondent denying the allegations and for good measure putting forth her side of the story with respect to the marital life between her and the petitioner herein. She very specifically denied any relationship with the second respondent and stated that in view of the fact that the petitioner herein had successfully protracted the legal proceedings for 10 years and more, she had to borrow money not only for her livelihood, but also for the education of the two children and stated that dues after obtaining consent from the petitioner herein, had sold the property to the second respondent for adequate consideration. The second respondent was just a purchaser of the property and had no further connection or relationship with her. She denied every imputation laid against her by the petitioner herein in that regard. 17. The learned II Additional Family Court, Chennai, while adjudicating I.A.No. 1491 of 2018 was faced with a very peculiar situation. Both the parties had filed elaborate written arguments along with documents filed in the form of 'typed set'. 18. Even before addressing the issues in the revision petition, I must state that this practice of filing documents in the form of 'typed set' before a trial Court has to be abjured immediately and the trial Judge should ignore all of them. The documents remain as scraps of paper. 18. Even before addressing the issues in the revision petition, I must state that this practice of filing documents in the form of 'typed set' before a trial Court has to be abjured immediately and the trial Judge should ignore all of them. The documents remain as scraps of paper. They will have to be examined only if they are admitted to evidence, proved in manner known to law and their relevancy is established. The Trial Courts need not take them into consideration till the documents cross those tests. 19. In the instant case, the learned Judge had listed out the documents filed in support of the petition and in support of the counter and to her credit, had actually examined each one of the documents and had found that the documents filed by the petitioner were not supported by any pleadings in the affidavit filed in support of the petition in I.A.No. 1491 of 2018. The learned Judge had therefore rejected the said documents and had dismissed the application, giving rise to this Civil Revision Petition. 20. With the above as the background, let me delve into the facts with more detail. 21. As stated, the marriage between the petitioner and the first respondent had been solemnised on 25.04.1997. It is claimed by the revision petitioner that he was profitably employed at Canada. However, it is the claim of the first respondent is that the petitioner herein was in his final semester graduation and had not even completed his degree even though he was 27 years. She also claimed that he was epileptic and was subjected to seizures very often. 22. It is claim of the revision petitioner that he had been living in foreign country life throughout his life and therefore could not adjust himself to Indian Society or live in India or more particularly in Chennai. They lived in Canada and it is the case of the first respondent that the petition's father was a source of support to her though the petitioner considered his father as an enemy. 23. It is the case of the petitioner that in 2005 the first respondent came back to Chennai. He held out that she was lazy and in Chennai, she could get a servant to do the daily chores, while obtaining such a servant is cost prohibition in Canada. 24. 23. It is the case of the petitioner that in 2005 the first respondent came back to Chennai. He held out that she was lazy and in Chennai, she could get a servant to do the daily chores, while obtaining such a servant is cost prohibition in Canada. 24. It is the version of the first respondent that in order to provide security and good education to the two children, she brought them to Chennai and further claimed that after they came back to Chennai, the petitioner just deserted her and went back to Canada to live with his mother. He never returned back to Chennai. He sent monies at irregular intervals. 25. It is thus seen that the differences between the two are quite vertical. These are issues which have to be addressed by the learned II Additional Family Court Judge during the course of trial. 26. The petitioner herein then filed I.A.No. 1491 of 2018 alleging that the first respondent was living with the second respondent and was therefore, not entitled for any maintenance. This fact has been very seriously disputed and denied by the first respondent. 27. The learned Judge in the course of her order while discussing the various documents filed by way of typed set, which discussion in my opinion, was not at all required since the documents had not at all been admitted to evidence, had also very categorically stated that there is no proof for the contention by the petitioner that the first respondent was living with the second respondent. 28. I completely concur with the said finding. 29. It would be in the interest of the parties that they proceed with the trial in O.P.No. 3865 of 2010. The petitioner herein is already facing an order passed by the Hon'ble Supreme Court directing him to pay maintenance and an order by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, in M.C.No. 28 of 2014. It would be in his interest that he participates in the trial proceedings in O.P.No. 3865 of 2010 and ensures it comes to an end at the earliest. 30. I hold that both the parties in O.P.No. 3865 of 2010 should be afforded opportunity to establish their respective cases on the basis of admissible relevant documents, proved in manner known to law. 31. I hold that the second respondent is neither a necessary party nor a proper party. 30. I hold that both the parties in O.P.No. 3865 of 2010 should be afforded opportunity to establish their respective cases on the basis of admissible relevant documents, proved in manner known to law. 31. I hold that the second respondent is neither a necessary party nor a proper party. He is wholly unnecessary to decide the issues under Section 13(1)(i-a) and under Section 26 of the Hindu Marriage Act, 1956 in O.P.No. 3865 of 2010. References to Section 17 and to Section 23-A of the Hindu Marriage Act 1956 are of no avail to the revision petitioner herein. 32. This Civil Revision Petition is dismissed. Costs are not imposed taking into consideration the relationship between the parties. Consequently, connected Civil Miscellaneous Petition is closed. 33. During trial when decision is given on the basis of evidence adduced by the parties observations of the learned II Additional Principal Judge in the order dated 14.09.2020 in I.A.No. 1491 of 2018 may not be taken into consideration.