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2018 DIGILAW 1158 (KAR)

Vani Girish v. K. N. Girish

2018-12-03

B.VEERAPPA

body2018
ORDER : B. Veerappa, J. 1. The present writ petitions are filed by the petitioner-wife against the order dated 11.10.2018 on I.A. Nos. 10 and 11 rejecting the applications filed by the petitioner for recalling PW-1 for cross-examination and re-opening the case in M.C. No. 1990/2013 by the IV Addl. Prl. Judge, Family Court, Bengaluru. 2. The respondent-husband filed petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act, for dissolution of marriage. The petitioner-wife filed objections to the main petition. When the matter was posted for cross-examination of PW-1, the present petitioner Smt. Vani Girish has not proceeded for cross-examination of PW-1 in spite of granting sufficient time. Thereafter, respondent/present petitioner-wife filed two applications i.e., I.A. No. 10 under Section 151 of the Code of Civil Procedure to re-open the case and permit the respondent/present petitioner to cross-examine PW1 and I.A. No. 11 under Order XVIII, Rule 17 of the Code of Civil Procedure to recall the order dated 29.06.2018 and permit the respondent/present petitioner-wife to cross-examine P.W.-1 contending that when the matter was posted on 29.06.2018 for cross-examination of P.W.-1, the counsel for the respondent-wife sought time, but the Hon'ble Court was pleased to take the cross-examination of P.W. 1 as 'Nil' and posted the matter for respondent evidence. She further contended that she is residing in a remote place of Chikkaballapura District and her children are school going and due to their school admission and arrangement of school fee, she could not contact the advocate and discuss about the case and therefore filed the applications for the relief sought for. The said applications were resisted by the husband by filing objections. 3. The Family Court considering the applications and objections, by the impugned order dated 11.10.2018 rejected the applications mainly on the ground that though the matter is of the year 2010 and in spite of granting sufficient time, the respondent-wife did not utilize the same. Hence, the present writ petitions are filed. 4. I have heard the learned counsel for the parties to the lis. 5. Sri. Murali M., learned counsel for the petitioner-wife contended that the impugned order passed by the Family Court rejecting the applications i.e., I.A. Nos. 10 and 11 is erroneous and contrary to the material on record. He would further contend that the respondent-husband filed petition against the petitioner-wife for divorce. 5. Sri. Murali M., learned counsel for the petitioner-wife contended that the impugned order passed by the Family Court rejecting the applications i.e., I.A. Nos. 10 and 11 is erroneous and contrary to the material on record. He would further contend that the respondent-husband filed petition against the petitioner-wife for divorce. An opportunity should have been provided to the petitioner to defend her case and the same has not been considered by the Family Court. Therefore, he sought to allow the writ petitions. 6. Per contra, Sri. K.G. Sudhakar, learned counsel for respondent-husband sought to justify the impugned order and contended that inspite of granting sufficient time, the petitioner-wife did not attend the proceedings only on the ground that she is getting monthly maintenance and she is in the habit of filing applications to drag the Court proceedings. Therefore, he sought to dismiss the petitions. 7. Having heard the learned counsel for the parties, it is undisputed fact that the present respondent filed the petition for divorce Under Section 13(1)(ia)(ib) of Hindu Marriage Act against the present petitioner-wife raising various grounds and the same is resisted by the present petitioner-wife by filing objections. The impugned order clearly depicts that sufficient time was granted to the present petitioner-wife for cross-examination of P.W. 1 and to lead her evidence. The same was not availed. Therefore, the Family Court has closed the cross-examination of P.W. 1 and posted for arguments and at that stage, the applications-I.A. Nos. 10 and 11 came to be filed. 8. Since, the rights of the parties are involved, an opportunity has to be given finally to the wife to cross-examine PW1 and file application to lead evidence, if any. Both the counsel for the parties stated that the matter is posted for arguments tomorrow i.e. 04.12.2018. In order to give one more opportunity, it is suffice to direct the present petitioner to cross-examine PW1 by tomorrow and file an application to lead her examination-in-chief, if any. If such an application is filed, the Family Court is directed to proceed with the matter for cross-examination of PW1 and permit to lead her evidence and it is for the respondent/husband to cross-examine the present petitioner on the date to be fixed by the learned Judge, subject to payment of cost of Rs. 5,000/- (Rupees five thousand only) payable to the respondent-husband. 9. 5,000/- (Rupees five thousand only) payable to the respondent-husband. 9. For the reasons stated above, the writ petitions are allowed. The impugned order dated 11.10.2018 passed by the Family Court on I.A. Nos. 10 and 11 of 2018 is hereby quashed. I.A. Nos. 10 and 11 of 2018 filed by the petitioner for re-opening and re-calling are allowed. Petitioner is permitted to cross-examine P.W. 1 and to file application to lead her evidence, if any, on payment of cost of Rs. 5,000/- (Rupees five thousand only) by 04.12.2018. It is made clear that the petitioner shall not seek any further adjournment and shall proceed with the case. If the petitioner fails to appear before the Family Court on 04.12.2018 (tomorrow) to proceed with the case, it is for the Family Court to proceed with the matter in accordance with law. Ordered accordingly.