IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 OP (FC).No. 1625 of 2011(R) ---------------------------------------- OP.NO. 1311/2005 of FAMILY COURT,ERNAKULAM .................... PETITIONER -------------------- PUSHPAMMA M.R, AGED 51 YEARS, D/O.VASUDEVA PANICKER, MAKOM, RAILWAY STATION ROAD NEYYATTINKARA. BY ADV. SRI.JOHNSON ABRAHAM SRI.NELSON ABRAHAM RESPONDENT(S): -------------------------- SMITHA STANLEY, D/O.P.J.STANLEY, PARASSERY HOUSE, MURIKKUMPADAM, AZHEEKAL P.O., ERNAKULAM DISTRICT-682 510. BY ADV. SRI.K.G.ANIL BABU THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(FC)NO.1625/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PETITION I.A.NO.1788/06 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM WITH WITNESS LIST FILED BY THE RESPONDENT HEREIN. P2 COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.1788/06 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM BY THE PETITIONERS HEREIN. P3 COPY OF THE ADDITIONAL AFFIDAVIT FILED IN I.A.NO.1788/06 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM BY THE RESPONDENT HEREIN. P4 COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED IN I.A.NO.1788/06 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM BY THE PETITIONERS HEREIN. P5 COPY OF THE ORDER IN I.A.NO.1788/06 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM. P6 COPY OF THE JUDGMENT DATED 21/8/2009 IN WP.NO.24081/2009 THIS HON'BLE HIGH COURT. P7 COPY OF THE PETITION I.A.NO.1120/11 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM FILED BY THE PETITIONER. P8 COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.1120/11 IN OP NO.1311/05 FAMILY COURT, ERNAKULAM BY THE RESPONDENT HEREIN. P9 COPY OF THE ORDER DATED 19/4/11 IN IA NO.1120/11 IN OP.NO.1311/05 FAMILY COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts Thottathil B.Radhakrishnan & K.Surendra Mohan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = OP(FC).No.1625 of 2011-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of August, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This original petition is filed invoking Article 227 of the Constitution challenging Ext.P9 order, issued in the midst of recording evidence, deferring consideration of the evidentiary value and relevance of a particular material, i.e., the service book of one of the respondents in a proceeding pending before the Family Court. 2.The respondent before us sued her divorced husband and in laws before the Family Court, for return of gold ornaments, money etc. The petitioner before us, a stepsister of the divorced husband, is one of the respondents before the Family Court. OPFC.1625/11 -: 2 :- 3.The checkered career of this litigation till now, August, 2011, will show that there were repeated attempts one way or the other, to thwart the culmination of this litigation which commenced in 2005, even before the marriage was dissolved in March, 2006. In 2009, WP(C).No.24081 of 2009 was filed challenging the issuance of summons to KSFE, the employer of the petitioner before us, to produce her service book. That found its waterloo when Ext.P6 judgment was issued by this Court finding no ground for interference under Article 227. Obviously, when it was pointed out that the said verdict may not stand granting seal of approval to the material sought to be summoned, this Court made the following observations in that judgment: “Objections about relevancy can certainly be raised by the petitioners when the document is sought to be proved. At any rate, we are not satisfied that Ext.P5 order warrants interference invoking the jurisdiction under Article 227 of the Constitution. OPFC.1625/11 -: 3 :- 5. This writ petition is accordingly dismissed. We reiterate that, at any rate when the document is sought to be introduced, the question of relevance can be raised and, if raised, must be considered by the Family Court.” 4.Thereafter, the learned Judge of the Family Court has passed the impugned Ext.P9 taking the view that the service book of the petitioner before us will be marked in evidence subject to all the objections raised by her and its evidentiary value will be considered and decided while preparing the judgment in the original petition. 5.This original petition under Article 227 is filed essentially clinging on to the aforesaid quoted portion of Ext.P6 judgment and emphasizing the use of the words “relevancy and relevance” in that judgment. We are of the view that the petitioner's approach is totally misconceived. OPFC.1625/11 -: 4 :- 6.What is to be considered at the stage of admission of a document or other evidence is any objection as to admissibility of such material. A ground of objection as to admissibility of a material as evidence in a case is different from the relevancy of the material that is admitted as evidence. The weighing of the evidentiary value of an item of evidence is a matter that is intricately connected with the final decision making process and inseparable from it. The relevance of a particular material that is admitted to evidence and its evidentiary value are matters that the Judge will consider while deciding the lis on its merits. That cannot be a piece-meal exercise. 7.An objection as to admissibility of a material to evidence is wholly different from any contention or argument as to the relevance or evidentiary value of an item that is admitted by the court into evidence. Competing presumptions – permissive and mandatory, inferences and cumulative value of evidence on record are OPFC.1625/11 -: 5 :- matters which the Court has to consider and weigh while answering the issues. It is never advisable; may be even dangerous; if Judges were to speak on relevancy, relevance and evidentiary value of any material tendered for evidence, before they start the process of looking comprehensively at the entire evidence as a whole, homogeneously and contextually. 8.Therefore, the afore-quoted portion of Ext.P6 judgment, using the words “relevance and relevancy”, can never be taken as made to compel the Family Court to speak on the relevance of a particular material while recording the evidence and thereby, speak on the evidentiary value of that material as regards the rival contentions. The relevant issues at that stage could be only as to the admissibility of any particular material to evidence. With this, we not only do not find any merit in this appeal but are of the view that there is a concerted effort to delay the proceedings pending OPFC.1625/11 -: 6 :- before the Family Court. Though we are inclined to impose fairly very heavy amount as costs, we dissuade ourselves from doing so, accepting the very persuasive submission in that regard, on behalf of the petitioner. Subject to that, this original petition is dismissed. Thottathil B.Radhakrishnan, Judge. K.Surendra Mohan, Judge. Sha/1908