IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.8570 OF 2017 (GM-FC) BETWEEN:
SMT. ANUSHA SONNAD W/O SHRI AKASH KALYANASHETTY (D/O SHRI ISHANNA SONNAD) AGED ABOUT 28 YEARS OCC:HOUSE WIFER/AT H.NO:999 1ST MAIN, RAJARAJESHWARINAGAR BANGALORE-560 098 REPRESENTED THROUGH HER GPA HOLDER AND FATHER SHRI ISHANNA SONNAD.
… PETITIONER (By Mr. G.R. GURUMATH, SR. COUNSEL FOR A/W Mr. RAVIRAJ MALALI, ADV.) AND:
SHRI. AKASH KALYANASHETTY S/O SHRI ASHOK KALYANASHETTY AGED ABOUT 31 YEARS OCC:SOFTWARE ENGINEER R/AT AKSHAYANO.38 8TH MAIN, VASANTHANAGAR BANGALORE-560 052.
… RESPONDENT (By Mr. ASHOK B. PATIL, ADV.,) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDERS DTD:19.11.2016 AND 9.2.2017 PASSED BY FAMILY COURT IN M.C.NO.4082/2015 VIDE ANNXURE-G & N. DIRECT THE HON'BLE FAMILY COURT TO ALLOW PETITIONERS MEMO DTD:16.1.2017 VIDE ANNEXURE-J & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri.G.R. Gurumath, Senior learned counsel for Sri.Raviraj Malali learned counsel for the petitioner.
Sri.Ashok.B, learned counsel for the respondent.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India the petitioner has assailed the validity of the order dated 19.11.2016 & 09.02.2017 passed by the Family Court and to direct the Family Court to allow the memo dated 16.01.2017 filed by the petitioner contained in Annexure-J. Alternatively, the petitioner has prayed for issuance of a commission for holding a expert medical investigation on the respondent regarding his impotency.
4. Facts giving rise to filing of the writ petition briefly stated are that the marriage between the parties was solemnized on 05.03.2014. The petitioner filed a petition under Section 12(1)(a) read with Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground that respondent is impotent. It was averred in the petition that the marriage of the petitioner and the respondent has not been consummated due to impotency of the respondent. The respondent filed statement of objections and denied the averments made in the petition and filed a counter claim seeking the relief of dissolution of marriage on the ground of cruelty.
5. The petitioner filed her objections on 01.07.2016. The respondent underwent a medical test at the institute of Nephro-Urology, an autonomous institute of Government of Karnataka and a certificate with regard to his potency was issued on 17.08.2016. On 19.07.2016, the matter was adjourned for cross-
examination of Plaintiff Witness No.1 on 22.08.2016. On the said date, the petitioner filed an application under Section 75(e) and Section 151 read with Order XXVI Rule 10-A of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), in which a direction was sought to the respondent to undergo medical examination. The respondent filed an objection to the aforesaid Interlocutory Application No.5 along with the report of Institute of Nephro-Urology. The Family Court rejected the aforesaid application by an order dated 19.11.2016 on the ground that undisputedly the respondent has undergone the potency test. Therefore, there is no need to pass separate orders on I.A.No.5. However, the right of the parties to lead evidence on the issue of potency was kept open. Thereafter, the petitioner filed a memo, in which it was stated that respondent may be directed to discharge the burden of proof without cross-examination of the petitioner whose evidence the respondent has pre- empted. The aforesaid memo was dismissed by the Family Court inter alia on the ground that the burden of proof lies on the petitioner, which she has failed to discharge and only if the petitioner proves that the respondent is impotent, the respondent will have to disprove it by establishing that he is potent. Accordingly, the memo filed by the petitioner was dismissed.
6. Learned counsel for the petitioner while inviting the attention of this Court to statement of objects and reasons of the Family Courts Act, 1984 (hereinafter referred to as ‘the Act’ for short) submitted that the Act has been enacted to simplify the means of evidence and procedure so as to enable a Family Court to deal effectively with a dispute. While pointing out to Section 10(3) of the Act, it is submitted that Family Court can evolve its own procedure with a view to arrive at a settlement in respect of the subject matter of suit or proceedings or at the truth of the facts alleged by one party and denied by the other. It is further submitted that the respondent has voluntarily produced the medical certificate, therefore, the burden is on the respondent to prove the same. In support of aforesaid submission, reliance has been placed on decisions of Hon’ble Supreme Court in SANTHINI VS. VIJAYA VENKATESH 2018 (1) SCC 1 and SHARADA VS.
DHARAMPAL 2003 (4) SCC 493.
7. On the other hand, learned counsel for the respondent has submitted that the burden to prove the condition mentioned in Section 12 of the Act that the marriage between the parties has not been consummated due to impotence of the respondent is on the petitioner and she has to discharge the burden. Learned counsel for the respondent has also invited the attention of this Court to the provisions contained in Sections 101 to 103 of the Indian Evidence Act, 1872 and has submitted that petitioner had submitted an application on 02.01.2017 for advancement of the date of her cross-examination from 16.01.2017 to 02.01.2017 and had executed a Special Power of Attorney in favour of her father authorizing him to undergo cross examination. The petitioner had also filed an application for recording her cross examination by way of video conferencing or by appointment of Commissioner, which was rejected by the Trial Court on 06.07.2017. The aforesaid order was challenged in a Writ Petition viz., W.P.No.37193/2017, which was dismissed as infructuous. It is further submitted that the order passed by the Trial Court is perfectly just and legal and does not call for any interference. In support of his submission reliance has been placed on a decision of Andhra Pradesh in ‘SMT.SUVARNA VS.G.M.ACHARYA’, AIR 1979 A.P 169 and ‘Dr.N.G.DASTANE VS. MRS.S.DASTANE’, AIR 1975 SC 1534.
8. I have considered the submission made by learned counsel for the parties and have perused the record. Section 10 of the Act, provides that the provisions of the Code shall apply to the suit or proceedings before the Family Court other than the proceedings under chapter XVIII of the Code. Section 10(3) provides that Family Court shall be at liberty to evolve on its own procedure with a view to arrive at settlement in respect of suit or proceeding or the truth of facts, alleged by one party and denied by other notwithstanding contained in Sub-Sections (1) & (2) of Section 10 of the Act. However, the aforesaid provision does not empower the Family Court to disregard the rules of evidence. Undoubtedly, the Family Court has the power to order a person to undergo medical test and such an order would not be in violation of Article 21 of the Constitution of India as has been held by the Hon’ble Supreme Court in the case of SHARADA supra. However, the aforesaid power has to be exercised at the appropriate stage bearing in mind the principles contained in the Indian Evidence Act, 1872.
9. Section 102 of the Indian Evidence Act,1872 provides that burden of proof in a suit or proceeding lies on the person who would fail if no evidence was given on either side. Section 103 of the Indian Evidence Act, 1872 mandates that burden of proof as to any peculiar fact lies on the person who wishes the Court to believe in its existence unless it is provided by any law that the fact shall lie on any particular person. The burden to prove an affirmative fact lies on the person who wishes the court to delete in its existence. In other words, the burden lies on the petitioner initially to prove that the marriage between her and the respondent has not been consummated due to impotency of the respondent. Since, the respondent has controverted the aforesaid fact and has ascertained that he is potent; the onus then would shift on her to prove the aforesaid fact once the respondent discharges the burden. The burden in the real sense lies on the respondent as he asserts an affirmative fact and wishes the court to believe in its existence. However, the initial onus lies on the petitioner to prove her case as she is the plaintiff. Undoubtedly, the Family Court in an appropriate stage of the proceeding, can direct the respondent to undergo a medical test if the facts and circumstances of the case so require. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].In view of preceding analysis, the orders passed by the Family Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India.
Accordingly this petition is disposed of.
Sd/- JUDGE SS