BY AD v. JOHN K.GEORGE

2. It was contended that though the petitioners have filed a review petition before the Family Court, it was dismissed as per order dated 24.7.2023. Aggrieved by the above order, the petitioners preferred OP(FC).514/2023 before this Court. As per Ext.P4 order, the petitioners were permitted to submit appropriate application before the Family Court for recalling the order whereby the Advocate Commissioner was appointed in accordance with law and also point out other factors which are causing apprehension. Accordingly, the petitioners have filed I.A.40/2023 to review the order dated 14.7.2023 raising their grievances and praying for adducing evidence before the Court itself. The respondents filed Ext.P6 counter against Ext.P5. After hearing both sides the Family Court dismissed the above application as per Ext.P7 order.

3. According to the learned counsel for the petitioners, since the 1st respondent is a practicing lawyer he may not give correct answers during cross-examination and he may intimidate and attack the 1st petitioner OP(FC).12 of 2024 5 during cross-examination before the Advocate Commissioner. Therefore, her limited prayer is to record evidence in the Court itself. At the time of arguments, the 1st respondent appeared in person and argued that the prayer in the OP cannot be allowed as the usual course of recording evidence is through Advocate Commissioner. The 1st respondent further contended that for the very same relief, the petitioners earlier filed I.A.30/2023, which was already disposed of. Therefore, it was argued that, the present application filed for the very same relief is not maintainable.

4. However, it is to be noted that in Ext.P4 order dated 17.10.2023, this Court has given liberty to the petitioners to submit appropriate application for recalling the order whereby the Advocate Commissioner was appointed and as such, the present review petition cannot be held to be unsustainable.

5. The apprehension of the petitioners is that since the 1st respondent is a practicing lawyer, he may not give correct answers during cross- examination and also that he may intimidate and attack the 1st petitioner during cross-examination before the Advocate Commissioner. She has already produced Ext.P3 wound certificate to substantiate her contention that on an earlier occasion during the pendency of this OP, she was OP(FC).12 of 2024 6 attacked by the 1st respondent and the Mavelikkara police registered a case in that respect. Therefore, her apprehension cannot be suspected as a malafide one.

6. The respondents will not be prejudiced in any manner, even if the evidence is recorded before the Court itself. Since the apprehension raised by the petitioners that they will not get a fair trial if the evidence is recorded by the Advocate Commissioner is a bonafide one, we hold that it is only just and proper to direct the Family Court to record the evidence in OP(G&W) 951/2021 in the Court itself.

7. In the result, this OP(FC) is allowed. Ext.P7 order dated 13.12.2023 is set aside. The Family Court, Mavelikkara is directed to conduct the examination of the 1st petitioner and 1st respondent in OP(G&W) 951/2021 before the Court itself. Sd/- Anu Sivaraman, Judge Sd/- C.Pratheep Kumar, Judge Mrcs/11.1.2024 OP(FC).12 of 2024 7 APPENDIX OF OP (FC) 12/2024 EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 A TRUE COPY OF THE ORIGINAL PETITION (GW) NO.951/2021 OF FAMILY COURT MAVELIKKARA TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN ORIGINAL PETITION (GW) NO.951/2021 OF FAMILY COURT MAVELIKKARA A TRUE COPY OF THE WOUND CERTIFICATE DATED 07/01/2022 OF THE DISTRICT MEDICAL OFFICER, MAVELIKKARA A TRUE COPY OF THE JUDGMENT IN O.P.(FC) NO. 514/2023 DATED 17/10/2023 OF THIS HON'BLE COURT A TRUE COPY OF THE IA 40/2023 IN ORIGINAL PETITION (GW) NO.951/2021 OF FAMILY COURT MAVELIKKARA, DATED 15/11/2023 TRUE COPY OF THE OBJECTION DATED 28/11/2023 IN IA 40/2023 IN O P(GW) NO.951/2021 OF FAMILY COURT, MAVELIKKARA TRUE COPY OF THE ORDER DATED 14/12/2023 IN IA NO.40/2023 (REVIEW PETITION) IN O.P. (GW) 951/2021 OF FAMILY COURT, MAVELIKKARA