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K.P.Nataraj (Trader)     10 July 2023

Appeal to divorce - witnesss reg.

Respected Sirs,

                          My Son filed a Divorce case on the Ground of Cruelty in the year 2014.  His wife filed

a RCR case later in 2014.

                    On 29/06/2023, the Court dismissed the Divorce case and allowed the RCR case and

ordered my Son to stay together with his wife.

                     My Son is not at all interested to stay with his Wife and he wants to go for Appeal for both

the cases.

                     In trial court two witnesses from our side were not admitted as the facts were not prayed

in the pleadings.  The Court said Evidences without Pleadings are inadmissable.

                  One of our Witnesses apart from the above two (One Physhciatric Doctor who gave treatment to

my son's wife) summoned but did not attend the court informing that instead of personal attendance he preferred

Virtual Video conferring or Interrogatory Question mode.  We did not bring the witness (Doctor) by way of Virtual

Video conferring or Interrogatory mode.  We kept quiet.  So the Witness was not examined. The fact regarding

Dcotor witness was prayed in the pleadings.

                   Now in the Appeal to the Higher court, shall we recall the Witness (Doctor) for examination and

cross examination.  Because we assume that this Witness (Doctor) will help to determine the truth in the case.

                        MY QUESTION IS;

           Shall we recall the Witness (Doctor) in the Appeal and proceed further?

 

Please advice.



Learning

 6 Replies

T. Kalaiselvan, Advocate (Advocate)     10 July 2023

If you failed to examne any witness during trial proceedings for whatever reason yo may cite now, you will not be allowed to examine the said witness in the appeal.

As a general rule, the appellate court should not admit additional evidence in order to decide an appeal, and the parties are not permitted to present additional evidence, whether oral or documentary, in the appellate court

1 Like

K.P.Nataraj (Trader)     11 July 2023

Respected Kalaiselvan Sir,

 

Thank you so much for your valuable ideas.

Dr. J C Vashista (Advocate )     11 July 2023

Well analysed, opined and advised by learned expert Mr. T Kalaiselvan, I concur.

1 Like

T. Kalaiselvan, Advocate (Advocate)     11 July 2023

You are welcome for your appreciations. 

1 Like

P. Venu (Advocate)     11 July 2023

The proceedings of the Family Court is not expected to be inquisitorial and hence is not restrained from conducting any enquiry related to truth. In the case of Nisha Haneefa v Abdul Latheef, the Kerala High Court has held as follows - 

"4. A combined reading of Sections 9, 10 and 14 would clearly bring out the point that the Family Court is not the mirror of an ordinary Civil Court. The powers of the Family Court can be summarized as follows:

(i) Adjudicative power following the rules of procedure as applicable under the adversarial system.

(ii) Proactive role for settlement of disputes between the parties.

(iii) Inquisitorial power to enquire into the truth of the matter.

5. The above enumerated powers are only for the Family Court. That distinguishes it from an ordinary Civil Court. More interestingly, it is to be noted that as reflected from Section 10(3), the Family Court is given the power to lay down its own procedure with a view to arrive at  settlement, or to enquire into the truth of the facts alleged. The power to choose the mode of procedure itself sufficiently indicates that the Family Court is not bound by any strictness of procedure of law as referred in the Code of Civil Procedure, the Indian Evidence Act, Criminal Procedure Code etc. What is essential in a dispute before the Family Court is that the Family Court is only to devise procedure for fair conclusion of the proceedings. If the Family Court is able to adhere to the “fairness”, the decision or order of the Family Court cannot be questioned in a higher Court. The Family Court is given complete freedom in devising fair procedure for speedy resolution of disputes before the said Court. 6. The role of the presiding officer in the Family Court needs to be stressed herein. As already adverted to, in all matters, what is required by the Family Court is a fair approach in dealing with the cases before it. In many of the matters like custody, maintenance, matrimonial status etc.,  the responsibility of the Court is to find out the truth. The focus of the enquiry is to be on the objectives to be secured rather than focusing on the subjective element of the dispute. The very purpose of entrusting family disputes to the Family Court from ordinary Civil Court is to focus not on the rights and obligations of the disputants but on the interest of the parties and welfare of the subject of the dispute. It is also to be remembered that the disputes amenable before the Family Court sometimes may require to follow the rules of adversarial litigation. But that does not mean that the Family Court Judge is restrained from conducting enquiry related to the truth as, in an inquisitorial model. To find out the truth, the Family Court does not require the consent of the parties. If fairness is reflected in any of the approaches, such an approach is clothed with legal protection.

7. The Delhi High Court in Kusum Sharma v. Mahinder kumar Sharma [2015 SCC OnLine Del 6793] considered the  power of the Family Court to elicit truth and observed that it is the duty of the Court to ascertain the truth regarding the true income of the parties and to pass appropriate orders in accordance with merits. It is further stated that truth is the foundation of justice; dispensation of justice based on truth is an essential feature of the justice delivery system. No doubt, our Family Court has the power to elicit and find out truth, and the responsibility lies on the Family Court Judge to find out truth, adhering to fair principles,"

As such there is a fair chance that the appeal could be successful, if the decision had been on purely technical grounds.

1 Like

K.P.Nataraj (Trader)     11 July 2023

Respected P.Venu Sir,

 

                      Thank you so much for your reply.    Definitely your points showed certain light to the issues in the case.

I hope it will be very helpful while we file our appeal case.


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