April 06, 2018
In a recent case decided by the High Court of Kerala, the Court elucidated on the appointment of Advocate Commissioner for recording of evidence in marital disputes and the caution to be exercised by Courts while issuing Commission.
The Court remarked that remarked that “one should be very careful before permitting the issue of a commission which will deprive the other side of the great advantage of having a witness cross-examined before the face of the Court itself.”
Relevant Law:
Under Section 75 of Code of Civil Procedure (CPC), the Court has been conferred with the power to issue commissions for incidental proceedings like examine any person, to make local investigation, to examine or adjust accounts, to make partition or to hold a scientific, technical or expert investigation, to conduct sale of property or perform any ministerial act. However, such power is not absolute and is subject to conditions or limitations. Apart from the said statutory provision the Court can appoint an Advocate Commissioner under Order 26 Rule 9 for the purpose of elucidating on any matter in dispute.
Facts of the case: The case at hand pertained to matrimonial dispute between the Petitioner and the Respondent whose cases were pending in the Family Court. The Family Court in the case ordered joint trial of the cases and also appointed an Advocate Commissioner to record evidence of the witnesses. Subsequently, the petitioner sought for permission to adduce oral evidence before the Court itself than having it recorded by an Advocate Commissioner. The Family Court turned down the Petitioner’s request.
Aggrieved by the same Petitioner approached the High Court contending that provisions of the CPC shall apply to the suits and proceedings before a Family Court only subject to the provisions of the Family Courts Act, 1984. It is the prerogative of the Judge and the Judge alone of the Family Court to record a memorandum of the substance of what the witness deposes which cannot be exercised by an Advocate Commissioner.
The Kerala High Court while allowing the Petitioner’s prayer made the following observation with reference to appointment of Advocate Commissioner for recording of evidence.
- It was stated that the Judge of the Family Court is so given the power to record only a memorandum of the substance of what the witness deposes only because he alone can remove the chaff from the grain in assessing a witness. That forensic skill of the Judge cannot be usurped by the Advocate Commissioner even though he can record remarks regarding the demeanor of the witnesses.
- That sensitive issues like cruelty, adultery, desertion or custody of children can be better adjudicated only when the witnesses are cross-examined before the face of the Court itself.
- That marital disputes have a personal touch depending on the character of the warring spouses and their social background which the Judge of the Family Court need to assess first hand. It is trite law that the demeanor of the witnesses have to be watched before assessing their credibility for the Court to rest its conclusion on their evidence in the verdict. The life and future of the parties in a marital dispute are at stake and the resolution of such disputes cannot be treated on par with adjudication of other disputes by the Civil Court.
- That in marital disputes, the desire of the wife or the husband to adduce evidence on the face of the Court is whittled down and smothered if the Court directs the evidence to be recorded by the Advocate Commissioner in all cases.
The Family Court shall have the evidence of the witnesses recorded by the Advocate Commissioner appointed only if either parties to the lis have no objection to adopt such course of procedure.
The witnesses shall be permitted to be examined before the face of the Court itself if either parties to the lis insist on such procedure in which event the Judge need record substance of the deposition only.
टिप्पणियाँ
एक टिप्पणी भेजें