IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 Mat.Appeal.No. 122 of 2010 ----------------------------------- OP.57/2009 of FAMILY COURT, KALPETTA .................... APPELLANT/1ST PETITIONER: ------------------------------------------- SUSAN GEORGE @ RACHANA RAHUL D/O.GEORGE VARGHESE, AGED 26 YEARS, CHANTHIAM HOUSE, MOOLAMKAVU POST, KUPPADI VILLAGE, SUTHAN BATHERY TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT/2ND PETITIONER: ---------------------------------------------- RAHUL PADMAN, AGED 28, S/O.PADMANABHAN SAI SAKURTHI HOUSE, MADI S/O.PADMANABHAN SAI SAKURTHI HOUSE, MADIYOORKUNI, NEAR NSS SCHOOL, KALPETTA, VYTHIRIR TALUK, WAYANAD DISTRICT. BY ADV. SMT.D.N.NISHANI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ----------------------------------- Mat.A.No.122 OF 2010 ------------------------------------ Dated this the 28th day of October, 2011 JUDGMENT “C.R.” Thottathil B.Radhakrishnan,J. 1.The appellant and the respondent filed an application under Section 13B of the Hindu Marriage Act, 1955 seeking divorce on mutual consent. They pleaded in their application that the wife was a Christian but converted to Hinduism and later, the marriage was conducted following Hindu religious rites and Ext.P1certificate was issued. 2. Being a joint application for divorce, obviously, there was no opposition by pleadings. 3.When the wife mounted the box and gave evidence, she stated about the marriage and the irretrievable break down of the relationship. She also spoke of the relevant materials MA.122/10 2 to come to the conclusion that the application is not a collusive one. The husband was also examined. The court did not put any question to the witnesses. Nor were they required to clarify any issue further. 4.However, the impugned judgment has been issued by saying that in the description of the wife at the top of the paper on which her deposition is recorded, she is shown as a Christian/Jacobite. According to the court below, that endorsement was made by the woman herself and therefore, such material is sufficient to hold that she was a Christian at the time of marriage and hence, the marriage itself was void and as a consequence, no application under Section 13B of the Hindu Marriage Act could lie. The application was dismissed. Hence this appeal by the wife. The husband has entered appearance through counsel. 5.For one thing, the court below was only exposing the irregularity in its proceedings and the manner in which the MA.122/10 3 officers of that court are working. It is not for the witnesses to scribble on the columns required to be filled up to register the identity of a witness who is examined in court. That is the duty of the person who administers the oath. One UDC is shown as the clerk who administered the oath and it was his bounden duty that the requisite entries and endorsements are made by ascertaining and filling up of relevant details. It is not for the witness to make such entry or endorsement. At any rate, the court cannot put the blame on the party for any entry in that regard. 6.That apart, the recording of the name, father’s name, age, religion, community, avocation etc. at the top of the paper on which deposition is recorded is not part of evidence in terms of the Evidence Act. Therefore, the materials available among those endorsements may not be utilised as evidence against the party, though such relevant materials can also be asked during the examination after the oath is MA.122/10 4 administered and made part of oral evidence which is primary evidence. 7.The Evidence Act does not apply in full vigour to proceedings in the family court. The purpose of such exemption and exclusions of the vigour of the rules of evidence is only to attain the basic objectives sought to be achieved by the Family Courts Act, that is to say, to bring harmony and probably negotiated settlement of family litigations. At any rate, it is not intended to stultify the parties on terms which they would never have visualised. A realistic approach by the courts is the first thing to be ensured while handling issues relating to a family, which, unfortunately, becomes a brittle unit. We do not find any rationale to sustain the impugned decree. 8.In the result, the impugned order in O.P.57/09 is vacated and this appeal is allowed dissolving the marriage between MA.122/10 5 the petitioners in that O.P., solemnised on 11.4.2004 with effect from today. 9.On our query, learned counsel for the appellant says that matters relating to the child have been settled between the couple. He says that the child is with the mother and the father says that he will not raise any claim regarding the child. The focus of consideration ought to be the rights and claims that the child would have against both the parents. We, therefore, clarify that this judgment will not stand in the way of any of the rights of the child as against the parties to this appeal, in accordance with law. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.31/10.