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2016 DIGILAW 513 (BOM)

Durgabai Arun Patiye v. Arun Jagan Patiye

2016-03-07

Z.A.HAQ

body2016
JUDGMENT : Z.A. Haq, J. Heard Ms. Shabana A. Diwan, advocate for the petitioner and Mr. Yogesh Shukla, advocate for the respondent. 2. Rule. Rule made returnable forthwith. 3. The petitioner (wife) has challenged the order passed by the Family Court allowing the application (Exh. No. 39) filed by the respondent (husband) praying that the wife be recalled to enable him to cross-examine her. 4. The wife has filed application under Section 125 of the Criminal Procedure Code. The evidence of wife and her witness is recorded and her side is closed on 23rd March, 2015. The evidence on affidavit of husband is submitted on 23rd March, 2015. At the stage of recording of evidence of husband, the husband changed his lawyer and then the application (Exh. No. 39) came to be filed. By the application (Exh. No. 39), the husband contended that some documents could not be produced by him earlier and, therefore, wife has not been cross-examined in relation to those documents. The husband prayed that the wife be recalled to enable husband to cross-examine her. The Family Court, by the impugned order, permitted the husband to produce the copy of complaint alleged to have been made by the husband to the police station to the effect that the wife had run away with some other person. The Family Court has directed the wife to remain present for cross-examination relating to the complaint alleged to have been given by the husband. The learned advocate for the petitioner has submitted that the copy of complaint was already on the record when the evidence on behalf of wife came to be recorded. 5. After considering the arguments made on behalf of the respective parties, I find that the impugned order is unsustainable. The alleged complaint submitted by the respondent to the police station was with the respondent and there is no explanation as to why the petitioner has not been cross-examined in relation to alleged complaint when her evidence was being recorded. The respondent cannot be permitted to fill up lacunae by permitting him to cross-examine the petitioner, after recording of evidence on behalf of the petitioner is over and the affidavit in lieu of examination-in-chief of the respondent is filed on the record. 6. Hence, the following order: (i) The impugned order is set aside. (ii) The application (Exh. No. 39) filed by the respondent is dismissed. 6. Hence, the following order: (i) The impugned order is set aside. (ii) The application (Exh. No. 39) filed by the respondent is dismissed. (iii) Rule is made absolute in the above terms. (iv) In the circumstances, the parties to bear their own costs.