Muktha K.N. vs Prasannan

S.P. Chaly, J.—1. The above Original Petitions are filed by the petitioner in O.P.(HMA) No. 895 of 2013 on the files of the Family Court, Chavara against the orders passed in various Interlocutory Applications, dated 11.11.2013. Details of the applications will be stated separately hereunder. Since the Original Petitions are closely connected, we propose to dispose of the same through this common judgment.

Necessary common facts required for disposal of the Original Petitions are as follows:

Petitioner is the wife of the respondent and they were married on 14.07.2004 at Valiyakulangara temple. Marital discord and disputes arose between the parties which led to the respondent filing O.P.(HMA) No. 264 of 2005 seeking to declare the marriage between the parties null and void. Petitioner herein also filed O.P.(HMA) No. 272 of 2005 seeking to declare the marriage null and void. Both the petitions were filed before the Family Court, Kollam which were later on transferred to the Family Court, Chavara and re-numbered as O.P.(HMA) No. 894 of 2013 and O.P.(HMA) No. 895 of 2013, respectively. The marriage of the petitioner with the respondent is a second marriage and vice-versa also. The averment of the petitioner in the application for dissolution is that the respondent had purposefully evaded to have sexual relationship with the petitioner as he was not having normal male organ to consummate the marriage and that he is an impotent and eunuch. When the said fact became known to the petitioner, the respondent forcefully kept the petitioner in solitary confinement in his house, without allowing her to have any contact with outside world. Thus the petitioner contended that she was subjected to cruelty for over 20 days. Petitioner escaped from the matrimonial home on 15.09.2004 and filed an application seeking to declare the marriage between the petitioner and the respondent null and void.

The respondent has filed the application seeking declaration of the marriage between the parties as null and void on the ground that the petitioner had produced fabricated horoscope regarding the age of the petitioner at the time of marriage and thereby contending that there was misrepresentation on the part of the petitioner with respect to her age. Both the aforesaid cases were tried together by the Family Court, Kollam and the petition filed by the respondent was allowed declaring the marriage between the petitioner and the respondent null and void. The petition filed by the petitioner seeking the very same relief of nullity was declined by the Family Court. Thereupon Mat. Appeal Nos. 61 and 62 of 2007 were filed by the petitioner before this Court. The said appeals were allowed by this Court and the cases were remanded for fresh consideration by providing sufficient opportunity to the parties to adduce evidence before the court below. Thereafter the Original Petitions were transferred from Family Court, Kollam to Family Court, Chavara on its constitution and accordingly re-numbered.

After the remand, the cases were tried jointly, treating the petition filed by the respondent as the lead case. Petitioner produced Exts. B1 to B5 and also examined R.Ws. 2 and 3, who are Doctors of the Medical Board, on her side and Ext. X1, a Medical Report was also marked during cross-examination.

O.P.(FC) No. 20 of 2014

Be that as it may, petitioner had filed I.A. No. 2790 of 2011 before the Family Court, seeking to set aside Ext. C1 potency test report and the same was pending consideration before the court below. Petitioner had earlier filed I.A. No. 1437 of 2006, while the matter was pending before the Family Court, Kollam, seeking to call for a Medical Report from the Medical College Hospital, Thiruvananthapuram. While the matters are so pending, petitioner filed I.A. No. 388 of 2013 in O.P.(HMA) No. 895 of 2013 seeking disposal of I.A. No. 2790 of 2011 and to consider the same prior to the hearing of the Original Petition. As stated earlier, petitioner seeks to set aside Ext. C1 report in I.A. No. 2790 of 2011, based on a contention that Ext. C1 report is drawn by the Medical Board without properly adverting to the physical incapacity of the respondent for having normal sexual relationship with the petitioner. Therefore, it is the contention of the petitioner that the request made in the said interlocutory application to set aside Ext. C1 report is a necessary requirement, before disposing of the Original Petition, since if the said report is held to be bad, a fresh report is to be drawn by the Medical Board in order to ascertain sexual capacity of the respondent. The said application was objected by the respondent contending that joint trial in both the petitions have already been allowed and evidence has also started. The evidence of the respondent was over and the petitioner herself was examined as R.W. 1 and two witnesses on her side also were examined. That apart, it is contended that the relief sought for in I.A. No. 2790 of 2011 and the Original Petition are one and the same and therefore there was no necessity to expedite hearing of the said I.A.

The Family Court, after considering the rival contentions raised in the petition and in the objection, dismissed I.A. No. 388 of 2013, against which petitioner has preferred O.P.(FC) No. 20 of 2014. The contentions advanced by the petitioner are that, Ext. C1 report was prepared under suspicious circumstances and the respondent was having abnormal genitals and is incapable of sexual intercourse, which was suppressed at the time of marriage and which was not ascertained by the Medical Board while drawing Ext. C1 report. It was also contended by the petitioner that Ext. C1 report was drawn without proper physical examination and therefore the said report will have to be set aside and fresh report is to be drawn. On the other hand, the respondent has objected the said application mainly contending that the subject matter of Ext. C1 report is a matter for consideration ultimately in the Original Petition and no manner of prejudice will be caused if the interlocutory application seeking to set aside of Ext. C1 report is posted along with the Original Petition. It was also contended by the respondent that since the members of the Medical Board named R.Ws. 2 and 3 were already examined and the reports were marked as Exts. C1 and X1, the subject matter of the petition can be considered by the court while ultimately taking a decision in the Original Petition.

Anyhow, after assimilating the fact situation, the Family Court dismissed the said Interlocutory Application holding that the subject matter raised in the interlocutory application can be considered along with other evidence tendered by the petitioner in the Original Petition and further that Ext. C1 report alone is not a conclusive proof, since the evidence tendered by the petitioner and the witnesses are also material aspects to be considered.

Having considered the rival submissions made by the petitioner who is appearing in person and that of the learned counsel for the respondent, we are of the considered opinion that the sole question to be considered is whether I.A. No. 2790 of 2011 filed by the petitioner and pending before the Family Court requires separate consideration before taking a decision in the Original Petition filed by the petitioner. We have stated earlier about the nature and relief sought for in I.A. No. 2790 of 2011, which is filed with a prayer to set aside Ext. C1 report. True, the Interlocutory Application was pending before the Family Court from the year 2011 and the petitioner has sought disposal of the same by filing I.A. No. 388 of 2013, after the trial was proceeded consequent to the remand made by this court in the earlier appeals. The petitioner has not insisted for the disposal of the said interlocutory application prior to starting of evidence on her side. The Doctors of the Medical Board were examined as R.Ws. 2 and 3 after the remand and Exts. B1 to B5 documents were marked on the side of the petitioner. It was thereafter that the petitioner has filed the Interlocutory Application pertaining to the impugned order seeking early disposal of I.A. No. 2790 of 2011. While considering the whole issue, we are of the definite opinion that Exts. C1 and X1 reports were marked through the Doctors of the Medical Board and evidence of these Doctors are recorded by the Family Court. The question to be decided in the Original Petition is the sexual capacity of the respondent to perform the marital obligations. An evaluation was done by the Medical Board and Exts. C1 and X1 reports were drawn. Those reports are evidences to be considered by the Family Court while adjudicating the issues involved in the Original Petition filed by the petitioner. When two reports are already available before the court below regarding the sexual capacity of the respondent, the same will have to be considered by the court, at first taking into account the evidence tendered by the Doctors of the Medical Board as well as the oral evidence tendered by the petitioner. The same being an exercise to be undertaken by the court below for deciding the Original Petition, there is no requirement at present for the Family Court to consider the said aspect as a preliminary issue. Therefore, we are of the considered opinion that the order passed by the Family Court refusing to consider I.A. No. 2790 of 2011 separately at this stage of the proceedings, cannot be found to be suffering from any incorrectness or illegality or other infirmities warranting interference of this Court by invoking powers conferred under Article 227 of the Constitution of India.

However, since the petitioner has raised apprehension about Ext. C1 report and she is maintaining a contention that the respondent was not properly examined by the members of the Medical Board, needless to say that, if ultimately after evaluating and analyzing the evidence the Family Court has any doubt with respect to correctness of Ext. C1 report, the Family Court will be at liberty to seek further report from any Medical Board of its choice in order to have a logical conclusion on the issues framed based on the rival contentions. Leaving open the said right to the Family Court, the above Original Petition is disposed of with the above observations.

O.P.(FC) No. 21 of 2014

This Original Petition is filed against the common order in I.A. Nos. 393 and 493 of 2013 in O.P.(HMA) No. 895 of 2013. I.A. No. 393 of 2013 is a petition filed by the petitioner seeking to set aside Ext. A8 photograph filed by the petitioner. I.A. No. 493 of 2013 is a petition seeking to send Ext. A8 photograph and its negative to the Forensic Science Laboratory to get an expert opinion with respect to its genuineness. The said applications are filed by the petitioner contending that Ext. A8 photograph is a fabricated one. It is the contention of the petitioner that since the marriage was not consummated due to physical and sexual incapacity of the respondent, Ext. A8 photograph is nothing but a fabricated document and therefore Ext. A8 and the negatives are to be sent to the Forensic Laboratory for expert opinion and then to set aside the same as not acceptable in evidence. Respondent has filed objection mainly contending that Ext. A8 was marked in evidence and at that point of time, its marking was not objected by the petitioner. Respondent also contended that Ext. A8 photograph is not a pornographic picture but an actual photograph. It is also contended by the respondent that his first marriage was dissolved by mutual consent and not on the ground of his physical incapacity or sexual impotency and therefore the respondent sought dismissal of the said Interlocutory Applications.

The Family Court, after evaluating the rival contentions and on considering the proceedings that have taken place, has arrived at a conclusion that, while Ext. A8 was marked the same was not objected by the petitioner and therefore Ext. A8 is an evidence on record in the Original Petition. The Family Court also found that, evidentiary value of Ext. A8 without production of its negative is a question which is to be considered ultimately by the court and therefore there was no requirement to consider setting aside the same or forwarding the same to the Forensic Laboratory, at this stage of the proceedings.

Having considered the rival submissions reiterated by the petitioner who is appearing in person and the learned counsel for the respondent, we are of the considered opinion that the attempt of the petitioner to challenge the marking of Ext. A8 at a belated stage and the request for sending the same for expert opinion, without objecting the same at the time of marking, is not sustainable under law. If the petitioner had any objection to marking of the photograph, the same ought to have been raised at the time of its marking itself. Having not done so, the court had marked the said document as Ext. A8 on the side of the respondent. The petitioner is not at liberty to challenge its marking at a belated stage. The veracity and evidentiary value of Ext. A8 can still be agitated and considered by the court while appreciating the evidence tendered, taking into account of other legal positions that are in vogue with respect to acceptability of Ext. A8 photograph. Therefore, according to us, there are no illegalities, other infirmities or irrationality in the order passed by the Family Court so as to warrant interference of this Court, that too by invoking powers conferred on it under Article 227 of the Constitution of India. Accordingly, the said Original Petition is dismissed.

O.P.(FC) No. 22 of 2014

The above Original Petition is filed against the order in I.A. No. 390 of 2013 in O.P.(HMA) No. 895 of 2013. Petitioner has filed the aforesaid Interlocutory Application seeking direction to the respondent to appear before the Medical Board at the Medical College Hospital, Thiruvananthapuram to undergo medical examination. It is the contention of the petitioner that the marriage between the petitioner and the respondent was solemnized suppressing the fact that the respondent is unable to perform sexual intercourse due to malformation of the male sexual organ and he had the characteristic of a eunuch. The physical capacity of the respondent is such that the consummation of marriage did not take place and the marriage is to be dissolved for that reason. According to the petitioner, even though in Ext. C1 report it is pointed out that the respondent has normal sexual ability and there is no malformation, the same is not a correct report. It is also contended that the respondent has no male organ as reported in the Medical Report and has no ability to procreate children. It is the further contention of the petitioner that it was under such circumstances, she had filed I.A. No. 2790 of 2011 to set aside Ext. C1 and also a witness schedule. That apart, it is also contended that the abnormality of the genitals of the respondent cannot be ascertained merely on the basis of potency test and there shall be diagnostic test by specialist Doctors with regard to the mal-formation of male organ of the respondent, presence of female sex organ, his potency and also to ascertain whether he had undergone any operation to the male organ and the purpose of the same, whether he had unnatural sex with other men and whether he is able to have sexual relationship etc.

The said interlocutory application was objected by the respondent contending that the allegations raised by the petitioner against his sexual capacity are not true or correct and further that the petitioner had filed I.A. No. 736 of 2006 for the same purpose consequent to which the respondent was subjected to medical examination, followed by rectal and chemical examinations and thereafter Ext. C1 report was drawn by the Medical Board reporting that the respondent is capable of sexual intercourse. That apart, it is contended that, after the remand the petitioner has examined two Doctors of the Medical Board and it was also deposed by them that the respondent was not having any physical infirmity as alleged. Thereupon it is contended that the aforesaid I.A. filed by the petitioner is not maintainable and is liable to be dismissed.

The Family Court after assimilating the rival contentions and on considering the evidence on record has found that, no purpose would be served by further sending the respondent for medical examination in view of Exts. C1 and X1 reports and the evidence tendered by the Doctors as witnesses on the side of the petitioner, touching upon Exts. C1 and X1.

We have considered the rival submissions and are of the considered opinion that, there are two Medical Reports before the Family Court concerning the sexual capacity of the petitioner. When the evidence of the Doctors of the Medical Board are before the Court regarding the same, it is not legally permissible to subject the respondent again for a medical examination, for the very same purpose. In order to send the respondent again for a medical examination for the very same purpose, the reports already drawn by the Medical Board should be defaced. In order to arrive at such a conclusion, the whole evidence let in by the parties in the Original Petitions will have to be considered by the court. As we have already held in O.P.(FC) No. 20 of 2014 that if ultimately the Family Court finds that the Medical Reports drawn are incompetent or incorrect and liable to be interfered with, the Family Court will be at liberty to seek further report from any Medical Board of its choice. Therefore, in that view of the matter and taking into account of the whole circumstances and the factual and legal issues involved in the case, we are of the considered opinion that no interference with the order passed by the Family Court at this stage is required. Needless to say that the liberty given by us to the Family Court in O.P.(FC) No. 20 of 2014 will be guided in this case also.

O.P.(FC) No. 23 of 2014

The above Original Petition is filed by the petitioner against the order of the Family Court in I.A. No. 389 of 2013 in O.P.(HMA) No. 895 of 2013 whereby the Family Court has refused to reopen the evidence of the petitioner as sought for in the Interlocutory Application. Contention of the petitioner is that she has produced certain documents as per I.A. No. 483 of 2013 and sought for re-calling of P.W. 1, which was dismissed. It is also the contention of the petitioner that she is intending to file fresh application for subjecting the respondent for medical examination at M.C.H., Thiruvananthapuram. But the Family Court has closed the evidence and the Original Petition was taken for disposal by resorting to a shortcut method. It is also contended that she could not file any petition for joint trial. That apart it is contended by the petitioner that, Ext. X1 report was a surprise to the petitioner and the petitioner had no intimation with regard to such a report drawn by the Medical Board and no copy was also served on her. It is also contended by the petitioner that Ext. X1 report as contended by the respondent did not find a place in the case pending before the J.F.C.M. Court, Karunagappally. According to the petitioner, Ext. X1 report is not a convincing one and the evidence was closed by the court without affording an opportunity to the petitioner for assailing the same. That apart, it is also contended that, the petitioner is intending to examine the first wife of the respondent and the petitioner could not produce the case records in O.P.(HMA) No. 295 of 1998 of Family Court, Kollam filed by Ambili, the first wife of the respondent, due to paucity of time and further that she is intending to assail Ext. A8 photograph.

Respondent has filed objection to the same contending that the said Interlocutory Application is not maintainable either on law or on facts and further that the petitioner has produced all the documents and they were marked, witnesses were examined on the side of the petitioner and the reasons for re-opening the case was not disclosed. That apart it is contended that, since sufficient opportunity was provided to the petitioner for adducing evidence, the Interlocutory Application filed by the petitioner is without any bona fides and therefore the same is liable to be dismissed.

The Family Court after evaluating all the facts and circumstances had came to a conclusion that since the petitioner was provided with sufficient opportunity to adduce evidence and that after the remand she had examined witnesses on her side and marked several documents. Even then the court allowed the application partly and witness Nos. 3 to 6 in the witness schedule of I.A. No. 391 of 2013 were allowed to be examined. The Family Court has also taken into consideration of the contention advanced by the respondent that Exts. C1 and X1 reports were procured by the petitioner herself and that their genuineness can be appreciated in the light of the contentions of the parties and evidence of R.Ws. 2 and 3. The Family Court has also found that Ext. B5 document pertaining to petition filed by the former wife of the respondent was already marked. Hence there is no necessity to examine his first wife Ambily. Accordingly, the said petition was allowed in part by allowing the petitioner to examine witness Nos. 3 to 6 in the schedule filed to I.A. No. 391 of 2013.

We have evaluated the facts and circumstances of the case and taken note of the order of remand passed by this Court in the earlier round of litigation. The petitioner is entitled to adduce evidence so as to establish the case put forth by her. We also find that, in the schedule the petitioner has cited 15 witnesses. The Family Court has allowed examination of witness Nos. 3 to 6. That apart, the reasons for excluding other witnesses are not assigned. In the larger interest of justice, it may not be proper on the part of the court to shut down the opportunity to the petitioner to adduce all evidence available, especially taking into account the circumstances alleged by the petitioner. However, the petitioner is also not at liberty to examine persons who have no manner of connection with the issues involved in the cases at hand. Witnesses are examined by the courts in order to find out truth and veracity of the rival contentions and objections raised by the parties to the litigation. Therefore the courts are always at liberty to examine witnesses that are required for eliciting the truth in the subject matter of the case. Taking into account the nature of contentions raised by the petitioner, we feel that the petition filed by the petitioner to re-open the evidence is to be re-considered by the court below. The Family Court can ascertain after hearing both the parties, whether any more evidence from the witnesses cited by the petitioner is required so as to elicit truth to decide the issues by and between the parties. In that view of the matter, we set aside the order of the Family Court in I.A. No. 389 of 2013 and direct the Family Court to re-consider the I.A. after providing sufficient opportunity to the parties and to pass a reasoned order as to whether any more witnesses are to be examined as sought for by the petitioner in the aforesaid Interlocutory Application. Therefore, O.P.(FC) No. 23 of 2014 is allowed accordingly.

O.P.(FC) No. 24 of 2014

This Original Petition is filed against the order of the Family Court in I.A. Nos. 392 & 560 of 2013 in O.P.(HMA) No. 895 of 2013. By the impugned order the Family Court had declined the reliefs sought for by the petitioner. I.A. No. 392 of 2013 is a petition filed seeking to set aside Ext. X1 Report produced and marked through the witnesses examined by the respondent. Contention advanced by the petitioner is that, there is nothing in Ext. X1 to show that the respondent was properly identified by the Medical Officer. That apart, the respondent has female voice and abnormalities, which was lost sight of by the Doctors who examined him. It is also contended that there was no expert available to examine the respondent and further that, except the gynecologist, all others are incapacitated to examine the respondent. So also, the sexologist, specialist in genetic medicines and psychologist etc. were not included in the Medical Board and the designation of the superintendent is not disclosed. It is also contended that Ext. X1 is a fabricated document in which details with regard to sexual erection, chances of erection etc. etc. are not noted. Hence the petitioner sought for setting aside of Ext. X1 report before entering into the trial proceedings.

I.A. No. 560 of 2013 is filed by the petitioner seeking to consider genuineness of Ext. X1 before entering into trial of the case. Respondent has filed objection to the said petition basically contending that the medical examination was done based on an application filed by the petitioner and Ext. C1 report was drawn. The said medical examination was conducted by a Urologist and analytical examination was also conducted. That apart, the Doctors who prepared Ext. C1 were examined by the petitioner during the time of trial of the Original Petition. When there was a criminal complaint under Sec. 498A of IPC, Crime No. 1000/2004 was registered against the respondent, and then he was subjected to medical examination by a senior Surgeon in the Taluk Hospital, Karunagappally, and Ext. X1 report was drawn. It is also the contention of the respondent that no objections were filed by the petitioner to the said medical report and therefore it has become final and conclusive. On that basis, the respondent has sought for dismissal of both the petitions.

The Family Court, after evaluating the facts and circumstances, has arrived at a conclusion that the evidence in the Original Petition has proceeded and the Doctors who had issued Exts. C1 and X1 Medical Reports were examined as R.Ws. 2 and 3. The Family Court has also taken into account the contentions in the Original Petition with regard to impotency and sexual incapacity of the respondent and held that Ext. X1 is a matter to be finally considered by the court after evaluating and appreciating the evidence tendered by the petitioner, respondent, as well as the Doctors who are members of the Medical Board which issued Exts. C1 and X1 Medical Reports and therefore the court found that consideration of Ext. X1 before the trial proceedings is not warranted and accordingly the I.A. was dismissed.

We have already held in O.P.(FC) No. 20 of 2014, that the question with respect to veracity, validity and scope of Ext. X1 report can be considered by the court at the time of considering the Original Petition finally, and if the court finds that the Medical Reports already drawn and other evidence tendered by the parties are not sufficient enough to elicit the truth in the matter, the Family Court will be at liberty to seek further report regarding the allegations made by the petitioner from a suitable Medical Board. In view of the said finding rendered by us, and also taking into consideration of the fact that the subject matter regarding Ext. X1 report will be a matter for consideration while deciding the Original Petition, we are of the considered opinion that there is no requirement to set aside Ext. X1 report at present, or to consider the same before the disposal of the Original Petition.

Resultantly, the said Original Petition fails and the same is dismissed accordingly.

O.P.(FC) No. 25 of 2014

The above Original Petition is filed against the order in I.A. No. 528 of 2013 in O.P.(HMA) No. 895 of 2013. The aforesaid I.A. is filed by the petitioner seeking joint trial of O.P.(HMA) No. 895 of 2013 filed by the petitioner and O.P.(HMA) No. 894 of 2013 filed by the respondent. The Family Court has found that already a joint trial is ordered in the aforesaid cases and therefore there is no requirement for ordering joint trial afresh. We do not think that any interference is required at all, and there is no illegality or infirmity warranting our interference in the said finding. Yet another request made by the petitioner in the said Interlocutory Application was to issue summons to the witnesses from the witness list submitted by the petitioner. We have already considered the said matter in O.P.(FC) No. 23 of 2014 and has held that, in the larger interest of justice reasonable and sufficient opportunity shall be provided to the litigants to elicit truth in accordance with the pleadings made by the petitioner. There are 15 witnesses cited by the petitioner and out of which, witness Nos. 3 to 6 were already allowed to be examined and summons were directed to be issued to them. However, taking into account the factual aspects and situations, we have already held in O.P.(FC) No. 23 of 2014 that the Family Court will be at liberty to exercise its power and ascertain whether the examination of the witnesses offered by the petitioner is required and if necessitated the court below is given liberty to consider the request of the petitioner and to issue necessary orders.

Therefore, this Original Petition is disposed of by providing liberty to the Family Court to ascertain the circumstances as held in O.P.(FC) No. 23 of 2014 and to take necessary steps in accordance with law. No separate order is required in this Original Petition in view of the findings in O.P.(FC) No. 23 of 2014.

We take note of the fact that the subject matter of the litigations filed by the parties are pending before the Family Court from the year 2005 onwards and more than ten years have elapsed. After remand in the earlier round of litigations in the year 2011, four years have elapsed and still the matter is at large before the Family Court and moving at a snail speed. We think it is only just and proper that a direction can be issued to the Family Court to finally conclude the Original Petitions filed by the rival parties within a time limit. Therefore, we direct the Family Court to take into account the directions contained herein above and to dispose of the Original Petitions filed by the rival parties within an outer limit of three months from the date of receipt of a copy of this judgment.