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2016 DIGILAW 148 (UTT)

Afroj v. State of UttarakhandState of Uttarakhand

2016-04-01

SUDHANSHU DHULIA

body2016
JUDGMENT : Sudhanshu Dhulia, J. 1. Mr. Nagesh Aggarwal, Advocate for the applicant. 2. Mr. P.S. Saun, learned Deputy Advocate General with Ms. Mamta Joshi, learned Brief Holder for the State/respondent no. 1. 3. The present applicant before this Court has challenged two orders i.e., order dated 20.11.2015 and 07.09.2015 passed in a Case No.65 of 2012 under Section 125 CrPC (Smt. Reshma Vs. Afroj) by the Additional Judge, Family Court, Roorkee, District Haridwar. By the two orders effectively, the application of the applicant for recalling PW-1 and PW-2 under Section 311 CrPC has been rejected. 4. Brief facts of the case are that the applicant and respondent no.2, who are muslims by religion were married as per the Muslim Rites and Ceremonies at Mangalore, Haridwar on 14.05.2011. Thereafter, there appears to be a matrimonial discord. 5. According to the present applicant, the respondent no.2 left the house of the applicant and has started living with her parents. The applicant instituted a suit for restitution of conjugal rights which is pending before the court below being Original Suit No.136 of 2012 (Afroj Vs. Smt. Reshma). Meanwhile, respondent no.2 had also filed first information report against her husband and in-laws under Section 498A IPC where the applicant and his family members were arrested and subsequently released on bail. 6. Respondent no.2 has subsequently also filed an application under Section 125 CrPC which is pending before the Additional Judge, Family Court, Roorkee, District Haridwar. The two impugned orders arise out of the proceedings pending before the Additional Family Judge, Roorkee, District Haridwar in a case under Section 125 CrPC. From the two orders impugned before this Court, it further emerges that an interim maintenance was fixed by the court below which the present applicant has not given to the respondent no.2/wife so far. 7. Be that as it may, PW-1 (Reshma) was examined on 27.05.2015 and PW-2 (Naushad) was examined on 01.07.2015. Thereafter, a date was fixed for cross-examination on 06.07.2015, which the present applicant did not avail and the reason given is that lawyers were on strike and he could not come etc. In any case, the applicant moved an application for recalling the PW-1 and PW-2 which was rejected by the court below on 07.09.2015. Again an application was moved for similar reason, which was again dismissed by the Additional Judge, Family Court, Roorkee, District Haridwar on 20.11.2015. 8. In any case, the applicant moved an application for recalling the PW-1 and PW-2 which was rejected by the court below on 07.09.2015. Again an application was moved for similar reason, which was again dismissed by the Additional Judge, Family Court, Roorkee, District Haridwar on 20.11.2015. 8. The only reason assigned by the applicant for recalling the witnesses was that he has changed his lawyer and the earlier lawyer could not ask material questions from PW-1 and PW-2 as these questions are essential for the just disposal of the case, therefore these witnesses need to be recalled. This plea of the present applicant did not find favour with the Additional Judge, Family Court, Roorkee, Haridwar, and as already stated above, this application has been rejected. The two impugned orders have been perused by this Court which are annexed as Annexure Nos. 5 and 7 to the present application. This Court does not find any anomaly in the orders impugned. 9. In view thereof since this Court finds absolutely no anomaly in the two orders passed by the Additional Judge, Family Court, Roorkee, District Haridwar, proceedings under Section 125 CrPC have to be carried in accordance with law. 10. In the present case, this Court finds that unnecessary delay is being caused by the applicant and his conduct leaves much to be desired as it has clearly come in the impugned orders that the applicant has not complied with the earlier orders of court below regarding the payment of interim maintenance. Moreover, in any case, recalling of witnesses under Section 311 CrPC is on very limited ground only where the Court feels that it is necessary for the just disposal of the case. For reasons that the applicant could not ask material questions from the witnesses earlier or that he has now changed his counsel, can never be a ground for recalling the witnesses. Therefore, the application of the present applicant has been rightly rejected by the court below. 11. In view of this Court, no interference is called for in the matter. The application under Section 482 CrPC stands dismissed.