IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.4.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.70 of 2010 B.Leelavathy ... Petitioner vs. E.Balakumar ... Respondent This Civil Revision Petition filed against the order and decretal order, dated 9.9.2009, of the I Additional Family Court, Chennai passed in I.A.No.2230 of 2009, in O.P.No.2140 of 2004. For petitioner : M/s.Thamizharasi For Respondent : Mr.G.Palani O R D E R
This Civil Revision Petition is filed against the order, dated 9.9.2009, made in I.A.No.2230 of 2009, in O.P.No.2140 of 2004, on the file of the I Additional Family Court, Chennai.
2. The respondent had filed O.P.No.2140 of 2004, on the file of the I Additional Family Court, Chennai, praying for a decree of divorce, by nullifying the marriage of the respondent with the petitioner, solemnised on 22.5.1994, and for other reliefs.
3. The Original Petition had been filed seeking the relief of divorce, basically, on the ground of cruelty. The petitioner had filed an interlocutory application, in I.A.No.2230 of 2009, under Order 26 Rule 10-A read with Section 151 of the Civil Procedure Code, 1908, praying for the appointment of an Advocate Commissioner, to obtain and submit a report based on the expert opinion of the Assistant Director, Research Development Division, Tamil Nadu Forensic science Department, Mylapore, Chennai, on the document marked by the respondent, as Exhibit A.4, which is a photograph, to find out whether the petitioner is sitting behind the person seen in the photograph.
4. The petitioner had stated that the respondent has been alleging that the petitioner had developed illegal intimacy with one Ram Prakash, and that the photograph marked as A.4 would show the petitioner in a compromising posture, in her work place. Since, the allegation of the respondent is of a serious nature that could cause a cloud of suspicion, with regard to the character and the integrity of the petitioner, she had requested for the obtaining of an expert opinion on the photograph marked by the respondent, as exhibit A.4.
5. The trial Court, had rejected the interlocutory application filed by the petitioner, by its order, dated 9.9.2009. Aggrieved by the said order, the petitioner has preferred the present Civil Revision Petition, under Article 227 of the Constitution of India, stating that the learned I Additional Family Court, Chennai, did not appreciate the fact that the contention raised by the petitioner in the affidavit filed in support of the interlocutory application, in I.A.No.2230 of 2009, is of a serious nature, as it would have serious consequences, with regard to the character and integrity and dignity of the petitioner.
6. The learned counsel appearing for the petitioner had submitted that the learned judge had already given his final finding, with regard to the photograph, marked as Exhibit A.4, even before the proceedings in the original petition are over. The learned Judge ought to have allowed the application for obtaining an expert opinion on the photograph marked by the respondent, as Exhibit A.4. The learned judge ought to have considered the fact that petitioner is simply sitting behind Ram Prakash and she is not resting her face on his shoulder, as alleged by the respondent.
7. The learned counsel appearing for the petitioner had submitted that the learned Judge ought to have seen that Exhibit A.4 photograph had been marked even though the petitioner had raised serious objections for its marking. Even though the respondent had filed the original petition against the petitioner herein, for divorce, on the ground of cruelty, he has alleged that the petitioner was living in adultery, with Ram Prakash, who is not a party to the original petition. Further, the learned Judge ought to have noted the fact that there is no willful delay in the filing of the application by the petitioner. In such circumstances, the I Additional Family Court, Chennai, ought to have allowed the application filed by the petitioner, instead of rejecting the same, by its order, dated 9.9.2009.
8. In the counter affidavit filed on behalf of the respondent, it has been stated that the I Additional Family Court, Chennai, was right in dismissing the interlocutory application filed in the petitioner, in I.A.No.2230 of 2009, by its order, dated 9.9.2009.
9. It has been further stated that the petitioner had never denied the existence of the photograph, nor the identity of the person, who is seen in the photograph. The respondent had filed the photograph, along with the negative, before the I Additional Family Court, Chennai, at the earliest point of time, at the time of the filing of the O.P.No.2140 of 2004, in the year, 2004.
10. There was no reply from the petitioner, with regard to the averment of the respondent that the petitioner was in a compromising posture, with Ram prakash, in the work place. The petitioner has been delaying the proceedings in the original petition by using various unacceptable methods. By filing a frivolous interlocutory application, the petitioner is attempting to prolong the proceedings in the original petition. Therefore, the Civil Revision Petition is liable to be dismissed. The application has been filed by the petitioner at a stage when original petition has been listed for arguments.
11. The learned counsel appearing for the petitioner had relied on the following decisions in support of her contention:
1. VISHAKA Vs. STATE OF RAJASTHAN (1997) 6 SCC 241
2. GOPAL S. Vs. D.BALACHANDRAN 2008 (1)CTC 491
3. BANU Vs. GOVINDAPERUMAL 2009 (3) C.L.T.125
12. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondent and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the order, dated 9.9.2009, made in I.A.No.2230 of 2009, in O.P.No.2140 of 2004. The order of the learned I Additional Family Court, Chennai, dated 9.9.2009, cannot be said to be erroneous or illegal. Even though the petitioner had sufficient time to agitate the matter, she has preferred to file the interlocutory application, in I.A.No.2230 of 2009, only at a belated stage after nearly five years from the date of the filing of the original petition, by the respondent.
13. The petitioner has not been in a position to show the proper reasons for the delay in filing the interlocutory application, in I.A.No.2230 of 2009. Even though certain serious allegations have been made by the respondent against the petitioner, including the allegation of adultery, it is for the respondent to prove such allegations, by sufficient oral and document evidence.
14. Further, it is noted that the original petition has been filed by the respondent for a decree of divorce against the petitioner, based on the ground of cruelty. The trial Court had found that the petitioner had filed the interlocutory application, in I.A.No.2230 of 2009, to obtain an expert opinion on the photograph marked as Exhibit A.4, belatedly, with the intention of protracting the proceedings.
15. It has been stated that the original petition is at the stage of arguments. The rejection of the application by the learned I Additional Family Court, Chennai, cannot be said to be improper or erroneous. It is for the petitioner to substantiate and establish her claims, by independent evidence. As such, the civil revision petition is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. However, it is made clear that the I Additional Judge, Chennai, is expected to decide the issues arising for his consideration, in the original petition, in O.P.No.2140 of 2004, filed by the respondent herein, without being influenced by his observations, made in his order, dated 9.9.2009, with regard to the photograph marked, as exhibit A.4. The I Additional Family Court, Chennai, is directed to dispose of O.P.No.2140 of 2004, on merits and accordance with law, as expeditiously as possible, not later than four months from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.Nos.1 and 2 of 2010 are closed.
lan
To
The I Additional Family Court,
Chennai