2005(3) ALL MR 791
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Smt. Archana Lokesh Undirwade Vs. Lokesh Shyamrao Undirwade & Anr.
Writ Petition No.3574 of 2004
29th September, 2004
Petitioner Counsel: S. I. KHAN
Respondent Counsel: M. B. AGASTI,NEETA JOG
Family Court - Procedure - Dispute between husband and wife - Necessary that wife be given opportunity to cross-examine husband - In the facts of the case last chance afforded to wife to cross-examine husband.
In the dispute between husband and wife, if the husband is not cross-examined by the wife possibility of entire truth not coming on record cannot be ruled out. Therefore the order of the Family Court rejecting the application by wife to cross-examine husband in the facts of the case was set aside and last chance was given to the wife to cross-examine the husband, subject to payment of costs of Rs.800/- to be paid to husband, so that this lacuna of not allowing the wife to cross-examine her husband does not continue in the proceedings warranting any contingency of remand in future. [Para 5]
JUDGMENT
JUDGMENT :- Rule made returnable forthwith. Heard by consent of the parties.
2. In this petition under Articles 226 and 227 of Constitution of India Petitioner-wife challenges the order dated 10-02-2004 passed by Family Court No.2 at Nagpur in Petition No.380 of 1999 by which the learned Presiding Officer has rejected her application for permission to cross-examine respondent-husband. The said application appears to have been moved on 05-11-2003 and reason given in it is that the counsel who was to cross-examine the respondent-husband was busy in some other matter.
3. The learned counsel appearing for petitioner wife states that if the respondent husband is not permitted to be cross-examined it will be a lacuna in the entire proceedings and it will not be conducive to complete justice between the parties.
4. As against this Adv. M. B. Agasti for respondent No.1 husband states that the Court passed impugned order in the peculiar facts and circumstances of the case. He points out that the matter is of the year 1999 and it is at the stage of evidence since 2001. He further points out that the Court has found that the wife has not given any reason for her attendence between 13-03-2003 to 14-06-2003. The Court has also found that in the meanwhile some application at Exh.49 was moved by her between these dates, therefore, the Court has doubted her bonafides in the matter. He further states that this is not the case in which sympathy should be shown to the petitioner wife.
5. Having heard both the sides I find that, in the dispute of present nature between husband and wife, if the husband is not cross-examined by the wife possibility of entire truth not coming on record cannot be ruled out. Thus, it will be in the fitness of things that the said mistake of the petitioner wife is corrected at this stage itself, so that this lacuna does not continue in the proceedings warranting any contingency of remand in future.
Hence, last chance is given to the petitioner-wife to cross-examine the respondent No.1 husband, on payment of costs of Rs.800/- to be paid to the husband. The costs are payable within a period of two weeks from today.
6. The counsel for parties inform that the matter is scheduled before the trial Court tomorrow i.e. on 30th September, 2004. The counsel for petitioner states that if the respondent No.1 husband remains available tomorrow the cross-examination will be conducted and finished tomorrow itself. He also undertakes that the petitioner wife will adduce her evidence tomorrow itself if the respondent No.1 husband completes his evidence.
7. The impugned order dated 10-02-2004 passed by the Family Court No.2, Nagpur is therefore, quashed and set aside. The petitioner is permitted, as a last chance, to cross-examine respondent No.1-husband tomorrow i.e. on 30th September, 2004 or such other appropriate date as the Family Court may deem fit in this respect after considering its daily board. The matter is pending since the year 1999, therefore, the proceedings in the said matter i.e. Petition No.380 of 1999 are hereby expedited and the learned trial Court is directed to dispose of the said matter as early as possible, in any case, within a period of four months from the date of receipt of this order.
Rule made absolute in the above terms.