Bombay High Court
Smt. Asha W/O Prakash Mishra vs Prakash S/O Babu Mishra on 20 October, 2012
Bench: V.A. Naik
2010wp2982.12-Judgment 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2982/2012
PETITIONER :- Smt.Asha W/o Prakash Mishra, aged about
31 years, Occ.-Household, R/o C/o
Mr.Yogendra Pathak, Plot No.887, New
Deshpande Layout, Near Water Tank,
Wardhman Nagar, Nagpur.
...VERSUS...
RESPONDENT :- Shri Prakash S/o Babu Mishra, aged about
ig 34 years, Occ.-Service, R/o 629 Eme (En.)
Mamoon Cantonment C/o. 56, A.P.O.
Pathankote, Punjab.
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Shri S. P. Kshirsagar, counsel for the petitioner.
Shri M. G. Jetha, counsel for the respondent.
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CORAM : SMT. VASANTI A. NAIK, J.
DATED : 20.10.2012
O R A L J U D G M E N T
Rule. Rule made returnable forthwith. The petition is heard
finally with the consent of the learned counsel for the parties.
By this petition, the petitioner impugns the orders passed by the
Family Court on 18/02/2012 and 17/03/2012 whereby the right of the
petitioner to cross-examine the witnesses of the respondent was
foreclosed and the application for setting aside the order dated
18/02/2012 was also rejected.
2010wp2982.12-Judgment 2/3
The petitioner is the original respondent. A petition was filed by
the respondent-husband for grant of decree of divorce. The respondent
examined himself. When two other witnesses were being examined, the
petitioner sought adjournments. On a couple of occasions, the
adjournments were granted. However, on 18/02/2012 the adjournment
was granted subject to payment of costs of rupees three thousand. On
17/03/2012, again an adjournment was sought on the ground that the
brother of the counsel for the petitioner had expired. The said
adjournment application was, however, rejected by the impugned order
dated 17/03/2012 and the right of the petitioner to cross-examine the
witnesses was foreclosed. The Family Court observed that the petitioner
had failed to deposit the costs of rupees three thousand as directed by
the order dated 18/02/2012 and there was no merit in the application
for grant of time.
On hearing the learned counsel for the parties and on a perusal
of the impugned orders, it appears that an opportunity needs to be
granted to the petitioner for cross-examining the witnesses of the
respondent. It cannot be said that the Family Court was at fault in not
permitting the petitioner to cross-examine the witnesses of the
respondent as the respondent's witnesses were from Jalgaon and in
spite of grant of several chances, the counsel for the petitioner had
failed to cross-examine them. However, since this is a matrimonial
matter and the petitioner was not at fault in seeking the adjournments
and the adjournments were sought due to the difficulty of the counsel,
2010wp2982.12-Judgment 3/3
the Family Court ought to have granted an opportunity to the petitioner
to cross-examine the witnesses of the respondent. Though the petitioner
had not deposited the costs of rupees three thousand before the Family
Court, the petitioner has deposited the costs in the Family Court during
the pendency of this writ petition. A lenient approach is needed in the
matter and hence, it would be necessary to quash and set aside the
impugned orders and permit the petitioner to cross-examine the
respondent's witnesses on the next date of hearing.
Hence, for the reasons aforesaid, the writ petition is partly
allowed. The impugned orders are quashed and set aside. The
petitioner is permitted to cross-examine the respondent's witnesses.
The respondent is permitted to withdraw the amount of rupees three
thousand deposited by the petitioner in the Family Court.
Rule is made absolute in the aforesaid terms with no order as to
costs.
JUDGE
KHUNTE
