Madras High Court
Al.Kannan vs Panjavarnam on 13 December, 2018
Author: S.S.Sundar
Bench: S.S.Sundar, C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.12.2018
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.M.A(MD)No.837 of 2016
and
C.M.P.(MD) No.7907 of 2016
AL.Kannan ... Appellant
Vs.
Panjavarnam ... Respondent
Prayer : Appeal is filed under Section 19(6) of the Family Courts Act, to
call for the records relating to the impugned fair and decretal order
dated 22.04.2016 made I.A.No.79 of 2016 in H.M.O.P.No.6 of 2014 on
the file of Family Court, Sivaganga.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondent : Mr.G.Prabhu Rajadurai
JUDGMENT
http://www.judis.nic.in 2 (Judgment of the Court was delivered by S.S.SUNDAR, J.) This appeal is directed against the order of the learned Family Court Judge, Sivaganga in I.A.No.79 of 2016 in H.M.O.P.No.6 of 2014.
2.The brief facts that are necessary for the disposal of the appeal are as follows:
The appellant filed a petition for divorce in H.M.O.P.No.6 of 2014 against the respondent on the ground of mental cruelty under Section 13(1)(b) of Hindu Marriage Act. In the petition filed by the husband against the wife several instances of rude and high handed behaviour were narrated. Specific allegations regarding wife living in adultery was also made. As a matter of fact, the appellant husband has also stated that the wife is living by having illicit intimacy with few other men. The appellant has also stated that the wife is maintaining relationship with one Manoharan and that he suspected the illicit intimacy between two as the wife was closely moving with the said Manoharan in many public places and at odd hours. Though serious allegations about the immoral conduct of the respondent are alleged in the petition, the divorce was not on the ground of adultery, but only on the ground of mental cruelty pointed above.
3.The respondent wife has filed counter disputing all the factual http://www.judis.nic.in 3 allegations.
4.During the pendency of the proceedings for divorce in H.M.O.P.No. 6 of 2014 before the Family Court, Sivaganga, the appellant filed an interlocutory application in I.A.No.79 of 2016 under Order 16 Rule 1 (2) read with 151 of C.P.C. to summon the District Superintendent of Police to examine a witness from M/s.Vodaphone Cllular Ltd., Madurai and to call for certain documents containing the call details of few SIM cards realting to few telephone numbers. In the affidavit filed in support of the petition, the appellant has stated that the respondent wife has close illicit affairs with other males and that therefore, he has filed the petition for dissolution of the marriage. It is further stated that to prove his case regarding the illicit intimacy with other persons, the appellant want the documents to be summoned through the witness from M/s.Vodafone Cellular Services with the help of District Superintendent of Police.
5.Though in the affidavit in support of the petition before the lower Court, it is stated by the appellant that he wanted particulars of calls emanated from Vodafone SIM Card No.98431090945 purchased in the name of one Nagarajan to the cell phone numbers 9444607488, 9443400410 and 9159136480 belonged to the same Nagarajan, one of the particulars required by appellant in the name of person in whose favour the SIM cards referred to alone was purchased. Other particulars required by http://www.judis.nic.in 4 the appellant are about the date, time and duration of the calls emanated from cell phone numbers 9843109095 and he details of persons who were called from the said number from 2008 to 2011. The appellant as earlier filed I.A.No.294 of 2013 to summon the documents showing the call details through the Branch Manager of M/s.Vodafone. Though the Branch Manager did not come forward to produce the documents upon receiving summons, the appellant did not take further steps for produced of such records. However, the present application in I.A.No.79 of 2016 is filed with a prayer to summon the District Superintendent Police to enable the production of records and examination of proper witness. Since it is admitted by the appellant that the cell phone numbers belonged to one Nagarajan and nowhere in the original petition, the relationship between Nagarajan and respondent is not mentioned, the lower Court found that it would be inappropriate to send for the documents from third party to the proceedings. Since reasons for getting the documents through District Superintendent of Police and the relevancy of document are not disclosed in the petition, the lower Court dismissed the interlocutory application. Aggrieved by the same, the above appeal is preferred by the husband/appellant.
6.It is not in dispute that the appellant has filed the petition in http://www.judis.nic.in 5 H.M.O.P.No.6 of 2014 for grant of divorce only on the ground of mental cruelty. Adultery is not a ground for divorce. The illicit intimacy of the respondent may also be established by capturing the actual conversation between the wife and another male. However, in this case, what was called for by the appellant is only the details of the calls and duration of the calls emanated from a telephone number to other numbers. The appellant has approached the Family Court even without ascertaining the necessity or relevance for getting the call details of cell phone and the persons in whose name the SIM cards had been purchased. From the nature of the prayer that is sought for by the appellant herein, the appellant seeks to fish evidence without disclosing the reason or relevance of the documents sought to be called for through the witness. When adultery is not a ground for divorce as against the respondent wife, the relevance of the documents is doubtful. It is not a matter of routine to issue summon to a third party unless the Court is satisfied that production of document is material and relevant.
7.In such circumstances, this Court find no merit in this appeal. Therefore, we are not inclined to interfere with the order of the Family Court. Hence, this civil miscellaneous appeal is liable to be dismissed. http://www.judis.nic.in 6
8.Accordingly, this civil miscellaneous appeal is dismissed. The fair and decretal order dated 22.04.2016 made I.A.No.79 of 2016 in H.M.O.P.No.6 of 2014 on the file of Family Court is hereby confirmed. No costs. Consequently, connected miscellaneous petition is also dismissed.
(S.S.SUNDAR J.,) & (C.SARAVANAN, J.) 13.12.2018 Arul To
1.The Family Judge, Family Court, Sivagangai http://www.judis.nic.in 7 S.S.SUNDAR, J.
AND C.SARAVANAN, J.
Arul W.A(MD)No.837 of 2016 and C.M.P.(MD) No.7907 of 2016 13.12.2018 http://www.judis.nic.in