Ms. D.Kavitha Devi, v. Mr. K.Jayakumar,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.01.2016
CORAM
THE HONOURABLE MS.JUSTICE R.MALA CRP (PD).No.24 of 2016 and C.M.P.No.127 of 2016 D.Kavitha Devi .. Petitioner Vs Jayakumar .. Respondent Prayer:Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 24.08.2015 made in I.A.No.1824 of 2014 in O.P.No.1512 of 2013 on the file of the I Additional Family Court (I Additional Principal Judge), Chennai. For Petitioner : Mrs.P.T.Asha for M/s.Sarvabhauman Associates
O R D E R
The Civil Revision Petition is filed against the order dated 24.08.2015 made in I.A.No.1824 of 2014 in O.P.No.1512 of 2013 on the file of the I Additional Family Court (I Additional Principal Judge), Chennai.
2.The respondent as a petitioner filed a petition in O.P.No.1512 of 2013 for divorce on the ground of cruelty. The petitioner as a respondent filed a counter and contested the petition. During the trial, the respondent filed a proof affidavit in which he has stated that what he has not stated in the petition and he has mentioned totally a new case. Hence, the petitioner herein was forced to file an application in I.A.No.1824 of 2014 to eschew the proof affidavit. The Trial Court after hearing both sides, dismissed the application. Against which, the present Civil Revision Petition has been filed. 3.At the time of admission, argument of the learned counsel for the petitioner is heard in length.
4.Learned counsel for the petitioner submitted that in the main petition, the respondent has stated that after marriage, there is a difference of opinion between both parties and hence, the petitioner herein left the matrimonial home and at that time, she has taken away all the gold jewels, silver utensils and also all her belongings. But whereas in paragraph No.11 of the proof affidavit, he has stated that he called the petitioner herein and handed over all her belongings. So, there is contradictory statement in the main petition and the proof affidavit and hence, the petitioner herein has filed an application for
eschewing the proof affidavit. That factum has not been considered by the Trial Court. Hence, she prayed for setting aside the impugned order passed by the Trial Court.
5.Considered the submissions made by the learned counsel for the petitioner and also perused the typed set of papers. 6.The husband/respondent herein has filed a petition for divorce on the ground of cruelty. It is true that in the main petition, the respondent herein has made allegations only in paragraph Nos.4 to 7 but in the proof affidavit, he has made allegations from paragraphs 2 to 27. But it is well settled dictum of the Apex Court that evidence shall not be pleaded but she must take the defence or averments that can be given in the form of evidence during the examination. Merely because proof affidavit contains so many particulars, it will not be a reason for eschewing the affidavit. The respondent/husband has every opportunity during the cross examination to confront each and every statement in the proof affidavit.
If there is a contradict statement between the main petition and the proof affidavit, it is only an advantage to the petitioner/wife during the argument and so, it will not be a ground for eschewing the proof affidavit filed by the respondent/husband.
relied upon various decision of both this Court and the Apex Court and dismissed the application. Hence, I do not find any reason to interfere with the order passed by the Trial Court and the same is hereby confirmed. Consequently, the Civil Revision Petition is hereby dismissed as devoid of merits.
8.In the result, the Civil Revision Petition is dismissed. Furthermore, since it is a matrimonial dispute and the same is pending from the year 2012, the Trial Court is directed to dispose of the petition in O.P.No.1512 of 2013 within three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. 08.01.2016 Index: Yes/No Internet: Yes/No cse To The I Additional Principal Judge, I Additional Family Court, Chennai.
R.MALA. J., cse CRP(PD).No.24 of 2016 and C.M.P.No.127 of 2016 08.01.2016