Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1068 (BOM)

Niranjan v. Priti

2014-04-25

A.I.S.CHEEMA

body2014
Judgment A.I.S. Cheema, J. 1. Learned counsel for the Petitioner submitted that Respondent Nos. 2 to 5 are formal parties and he wants to delete the said Respondents from the array of the Respondents. Leave granted. Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel for the parties. 2. Petitioner-husband of Respondent No. 1, complainant who is facing proceedings under the Protection of Women From Domestic Violence Act, 2005 ("Domestic Violence Act" in brief), has filed this Petition as his application Exhibit 47 filed in Criminal Misc. Application No. 1078 of 2012 has been rejected by the Judicial Magistrate, First Class, Court No. 4, Aurangabad by order dated 10th March, 2014. 3. According to the learned counsel for the Petitioner, vide Exhibit 47, the Petitioner had pointed out that he wanted to examine certain witnesses. According to the counsel, witness No. 1 Phulchand Chandrakant Jain was, as claimed by the Respondent No. 1 - complainant, mediator in the marriage and witness No. 3 Pramod Chandranath Tandure was writer of the VIVAH YADI (List of terms regarding what is settled at the time of finalization of marriage). Learned counsel submitted that Pramod Tandure was scribe of marriage list and so the Petitioner wanted to examine him. Counsel submitted that looking to the case of Respondent No. 1 regarding what all happened at the time of honeymoon trip, in defence Petitioner wanted to examine Abhishek Sansare, who was the organizer of the tour and was with the parties at the time when the parties went from place to place for honeymoon. 4. Learned counsel for Respondent No. 1 opposed the Petition claiming that the reply filed by the Petitioner in the proceedings in the trial Court, in Para 4 referred to the persons who were present at the time of talks and the same did not include the name of Mr. Pramod Tandure. Thus, according to him, the witness was not necessary. The counsel further referred to Para 7 of the Petition to submit that the Petitioner wants to examine the tour operator as he wanted to disprove the allegations of unnatural sex. The counsel questioned as to how the witness could make claim of any knowledge in this regard. It is further submitted that the Petitioner himself denied that Phulchand Jain proposed the match. Thus, according to the counsel, the witnesses were not necessary. The counsel questioned as to how the witness could make claim of any knowledge in this regard. It is further submitted that the Petitioner himself denied that Phulchand Jain proposed the match. Thus, according to the counsel, the witnesses were not necessary. Application was filed only to protract the proceedings. 5. Learned counsel for the Petitioner in reply submitted that looking to the case of the Respondent No. 1-complainant, the witnesses are necessary. The counsel submitted that the tour operator would not be examined regarding allegations of unnatural sex but other circumstantial evidence. 6. Looking to the controversy. I find that when the Respondent No. 1 herself is claiming that Phulchand Jain was mediator for marriage and through him they came to know about the Petitioner, in such circumstances, it cannot be said the Phulchand Jain is not necessary witness. There are certain allegations in the Petition filed by Respondent No. 1 in the trial Court, with regard to what happened at the time of honeymoon trip. If the present Petitioner wants to bring evidence for the purpose stated, it cannot be stated that the request is not justified. Similarly if the Petitioner wanted to examine Pramod Tandure as scribe of the marriage list, only by pointing out that reply filed in the trial Court does not mention the name of Pramod Tandure in the persons present for the purpose of talk, there is no reason to deny opportunity to the Petitioner to examine the witness, who is facing charge of domestic violence. Fair chance needs to be given to both sides. It would not be appropriate to refuse opportunity to Petitioner. 7. It appears that the matter is pending for long in the trial Court. Learned counsel for Respondent No. 1 requested that the matter may be expedited and if the Petitioner wants to call the witnesses, he should do the same on his own and non service of summons should not be any excuse for delaying the matter. Counsel for Petitioner agrees that Petitioner will ensure, on his own that the witnesses attend the Court so that the matter is not prolonged. However, the counsel for Petitioner requested that Petitioner may be given witness summons for Abhishek Sansare. The Court may issue witness summons but it will be responsibility of Petitioner to personally take summons and ensure service and non service would not be excuse. However, the counsel for Petitioner requested that Petitioner may be given witness summons for Abhishek Sansare. The Court may issue witness summons but it will be responsibility of Petitioner to personally take summons and ensure service and non service would not be excuse. For the reasons stated above, I pass following order:- ORDER (A) The Writ Petition is allowed. (B) Application Exhibit 47 filed by the Petitioner in Criminal Misc. Application No. 1078 of 2012 before the trial Court, is allowed. (C) The witnesses mentioned in Application Exhibit 47 be examined. (D) The Petitioner shall himself arrange to secure the presence of the three witnesses stated in the Application Exhibit 47. (E) However, the trial Court may issue witness summons to Abhishek Sansare, but it will be responsibility of Petitioner to take the Hamdast and ensure service on the witness and secure presence of witness. (F) The proceedings before the trial Court are expedited. Rule is made absolute on the terms indicated above. Petition allowed.