Ashwini vs Avinash C.

Ashok B. Hinchigeri, J.—Although the matter is listed for hearing on I.A., I have taken it up for final disposal with the consent of the learned Advocates. The petitioner has sought the quashing of the order dated 8-11-2013 (Annexure-E) passed by the V Additional Principal Judge, Family Court, Bangalore in G and WC. No. 212 of 2011 insofar as it pertains to I.A. Nos. 10 and 11. I.A. No. 10 is for recalling the respondent for further examination-in-chief by reopening the case. I.A. No. 11 is for summoning the audio CD. from the Station House Officer, Ramamurthynagar Police Station, Bangalore, seized in PF No. 106 of 2009 in Cr. No. 380 of 2009. The said audio CD. contains the alleged conversation between the petitioner and one Lohit Manohar.

Sri Showri, the learned Counsel for the petitioner submits that the two I.As. are filed at the belated stage. They came to be filed when the matter was set down for arguments. They were filed only to fill the lacunae in the version of the respondent. He submits that the Family Court is not justified in allowing I.A. No. 10 in exercise of its power conferred by Order 18, Rule 17 of Civil Procedure Code, 1908. He submits that the said provisions can be invoked only for the limited purpose of seeking clarification. But when there is no ambiguity, the question of Family Court exercising the power under Order 18, Rule 17 of CPC would not arise. In support of his submissions, he relies on the Apex Court's judgment in the case of Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, .

Sri Showri submits that the documents now belatedly sought to be produced do not figure in the list of documents filed by the respondent. He submits that the documents in question are not new documents. Only because the petitioner has denied the existence of the documents, the case cannot be reopened at the instance of the respondent.

As far as the I.A. No. 11 is concerned, the learned Counsel submits that when the main case itself is only for the custody of the child, the audio C.D. in question has no relevance whatsoever. He submits that the authenticity of the audio C.D. is also not proved. It is being brought in only to scandalise and thereby defame the petitioner.

Sri Ashok Haranahalli, the learned Senior Counsel appearing for Sri B.R. Manjunath for the respondent submits that in a petition for the custody of the child, what is of paramount importance is the welfare of the child. He submits that the respondent is given the visitation once a week. It is on the child informing the father (respondent herein) that it (child) is not staying with the mother and that it is put in a residential school away from Bangalore. On coming to know of the subsequent developments, the I.As. are filed. He submits that the petitioner is not being put to any prejudice on account of the allowing of the said I.As. It is always open to the petitioner to cross-examine the respondent and also to dispute the authenticity of the audio C.D. containing the conversation between the respondent and Lohith Manohar. The mere summoning of the audio C.D. from the police station has no consequence for any party. In support of his submissions, he relies on this Court's decision in the case of Mrs. B. Uma Maheswari Vs. A. Rajaganesh, .

The submissions of the learned Counsel have received my thoughtful consideration. On the application of the CPC for the proceedings before the Family Court, the advertence may be made to Section 10 of the Family Courts Act, 1984. The provisions contained in Section 10 are extracted hereinbelow:

"10. Procedure generally. -- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other".

The perusal of sub-section (3) of Section 10 shows that notwithstanding the provisions contained in sub-sections (1) and (2) of Section 10 of the Family Courts Act, the Family Court may lay down its own procedure with a view to arrive at the truth of the facts alleged by one party and denied by another. For satisfying itself as to what is in the best interest of the child, it is always open to the Family Court to call back the witnesses and summon the documents, which in its considered opinion are necessary for ascertaining the beneficial welfare of the child.

Not finding any infirmity or illegality with what the Family Court has done, I dismiss these petitions. However, it is made clear that the liberty is reserved to the petitioner to object to the marking of the documents in question and to dispute their veracity, authenticity and relevance. On hearing both the sides, it is for the Family Court to decide whether the documents are to be admitted in evidence and if they are admitted in evidence, what evidentiary value has to be attached to the same. No order as to costs.