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2015 DIGILAW 857 (KAR)

Shylaja v. Revanasiddeshwar M. Kunthimath

2015-08-04

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. - The petitioner is before this Court assailing the order dated 11-12-2012 passed in M.C. No. 50 of 2010 at Annexure-E and also the order at Annexure-C passed on LA. No. 8. 2. The petitioner herein is the respondent in M.C. No. 50 of 2010. The relationship between the parties is not in dispute. The petitioner herein is the wife of the respondent. In a petition filed by the respondent-husband seeking dissolution of their marriage under Section 13(1-A) of the Hindu Marriage Act, 1955, the respondent herein had been examined as P.W. 1. After being cross-examined to some extent, when it was listed for further cross-examination of P.W. 1, since according to the Court below the petitioner had not utilised the opportunity granted, the Court below had discharged the witness. It is in that view, the petitioner herein filed an application in I.A. No. 8 seeking recall of the order dated 11-12-2012 to permit further cross-examination of P.W. 1. The application has been rejected and it is in that view, the petitioner is before this Court. 3. Learned Counsel for the petitioner has referred to the entire order sheet to point out that even if on the day when P.W. 1 was discharged, the respondent therein viz., the petitioner herein was absent, on several occasions earlier the adjournment was not at the instance of the petitioner herein. It is pointed out that the matter had also been referred to the Mediation, thereafter taken up before the Court and adjourned from time to time. 4. Learned Counsel for the respondent would however make a detailed reference to the dates on which the matter has been adjourned and also would point out that no reasons worth considering have been indicated either in the affidavit accompanying the application nor in the grounds raised before this Court. It is therefore contended that the Court below was justified in its conclusion and the petitioner cannot make out any grievance. 5. Having heard the learned Counsel for the parties, I have perused the petition papers. It is no doubt true that the matter had been adjourned for the purpose of cross-examination of P.W. 1. As rightly pointed out by the learned Counsel for the petitioner, there are occasions as seen from Annexure-E when P.W. 1 himself was absent before the Court below. It is no doubt true that the matter had been adjourned for the purpose of cross-examination of P.W. 1. As rightly pointed out by the learned Counsel for the petitioner, there are occasions as seen from Annexure-E when P.W. 1 himself was absent before the Court below. On the day when the order dated 11-12-2012 was passed and P.W. 1 was discharged, admittedly the petitioner herein was not present. The question therefore is as to whether merely because of this reason an opportunity should be denied to the petitioner to cross-examine P.W. 1. 6. Even in the light of the reasons that have been indicated in the application and the objections filed thereto, what cannot be lost sight is that if ultimately the petition filed before the Court below under Section 13 is allowed, the matrimonial relationship between the parties would come an end and such consideration in a petition for divorce cannot be made merely because there would be some default on the part of one of the parties in the manner of proceeding with the case either while tendering the evidence or cross-examining the witness. 7. If that be the position, in any event, the application in I.A. No. 8 had been filed by the petitioner herein immediately thereafter seeking recall of P.W. 1. The Court below ought to have taken a pragmatic view of the matter and even at that stage, it would have been open for the Court below to regulate the cross-examination of P.W. 1 by providing an opportunity and thereafter not showing any leniency, if the opportunity was not utilised. Instead, the final order cannot be passed keeping in view the default. 8. Hence, I am of the opinion that in the instant facts, the Court below was not justified. The order on I.A. No. 8, dated 1-2-2013 is set aside. Accordingly, I.A. No. 8 is allowed and in consequence thereof, the order dated 11-12-2012 is set aside. The Court below is directed to recall P.W. 1 and permit the petitioner to cross-examine P.W. 1 in that regard. 9. The Court below shall fix a specific date for cross-examination of P.W. 1 on which date, the learned Counsel for the petitioner herein shall utilise the opportunity. Needless to mention that if such opportunity granted is not utilised, the petitioner would not be heard to complain thereafter. 9. The Court below shall fix a specific date for cross-examination of P.W. 1 on which date, the learned Counsel for the petitioner herein shall utilise the opportunity. Needless to mention that if such opportunity granted is not utilised, the petitioner would not be heard to complain thereafter. In terms of the above, the petition stands disposed of.