John Tyronne Saldanha vs Valerie Saldanha
2017 Latest Caselaw 6954 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                          CIVIL APPELLATE JURISDICTION

                           Writ Petition NO. 6144 OF 2017

 John Tyronne Saldanha                                          ...Petitioner
        Versus
 Valerie Saldanha                                               ...Respondent

                                         WITH
                           Writ Petition NO. 6145 OF 2017

 John Tyronne Saldanha                                          ...Petitioner
        Versus
 Valerie Saldanha                                               ...Respondent


 Mr.Lale i/b. Mr.S.M.Shettigar, for the Petitioner.

 Ms.Sumangala Biradar, for the Respondent.
                               ----------
                               CORAM : G.S.Kulkarni, J.

                                        DATE     :      8th September, 2017
                                          ----
 ORAL JUDGMENT :

1. Rule returnable forthwith. By consent of parties, heard

finally.

2. This petition under Article 227 of the Constitution of

India challenges an order dated 10 January 2017 passed by the

learned Judge, Family Court at Mumbai whereby the application as

filed on behalf of the petitioner for issuance of witness summons to

Father Joe Pereira and Dr.Menon who are stated to be attached to

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Kripa Foundation, Mumbai, came to be rejected. The case of the

petitioner is that the petitioner has filed Petition No.A-2487 of 2010

seeking annulment of marriage between him and the respondent and

for a decree of divorce under Section 10(vii) and (x) of the Divorce

Act,1869. The case of the petitioner as made out in the petition is in

regard to the ailment which, according to the petitioner, came to be

suppressed from the petitioner at the time of marriage between the

parties which came to be solemnized on 26 December 2009. In

regard to this ailment, there are specific averments which are made

in the Divorce petition at paragraphs 27, 35 and more particularly

paragraph 35(i), (k), (m) and (v). There is no need to extract these

averments, suffice to observe that in paragraph 35(v) the petitioner

has categorically pleaded in the petition that the respondent is

getting reimbursement of money spent by the respondent for the

treatment taken by her, from a NGO. Accordingly, having laid a

concrete foundation that the respondent is likely to suffer from the

ailment, the petitioner having received further information, moved an

application in question on 29 September 2016 seeking issuance of

witness summons to the said witnesses as noted above. The said

application has been dismissed by the impugned order by the learned

Judge of the Family Court accepting the contention of the

respondent-wife that the petitioner has not pleaded any case in the

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petition that the respondent was taking treatment at Kripa

Foundation and what was sought by the application was the

improvement in the case of the petitioner. Learned Judge in

dismissing this application has observed that the matrimonial petition

does not refer to the names of these witnesses from the Kripa

Foundation and thus, there was no relevancy which can be found in

the application as moved on behalf of the petitioner, and accordingly,

dismissed the said application.

3. Learned Counsel for the petitioner in assailing the

impugned order would submit that the basic premise on which the

impugned order has been passed, itself is erroneous. It is submitted

that there are sufficient averments which are made in the petition

which would demonstrate that the grounds on which the petitioner

had sought divorce was the alleged ailment. It is submitted that after

substantial efforts, the petitioner could get information as also some

documents which relate to the treatment as taken by the respondent

at Kripa Foundation and therefore, to prove the case which already

existed in the petition, the petitioner had filed the application in

question to summon the witnesses from Kripa Foundation. It is

submitted that the reason to dismiss the application as contained in

the impugned order, that there is no reference to the name of the

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witnesses in the petition, is wholly erroneous and overlooks the basic

case of the petitioner in seeking the reliefs in the matrimonial

petition filed by the petitioner. It is submitted that the application as

filed by the petitioner for summoning the said witnesses, was

required to be allowed.

3. Learned Counsel for the respondent has opposed this

petition on similar grounds on which opposition came to be made

before the Family Court. It is submitted that the matrimonial petition

as filed by the petitioner for divorce does not say anything about

Kripa Foundation or these witnesses. It is, therefore, submitted that

what is intended by the petitioner was to completely change the

nature of the case as pleaded in the petition and improve his case,

more particularly after the cross examination of the petitioner is

already concluded. My attention is also drawn to the relevant

extracts of the cross examination of the petitioner to contend that the

petitioner could not produce any material to support his contention.

It is, therefore, submitted that the petition deserves to be dismissed.

In support of the above contentions, learned Counsel for the

respondent has placed reliance on the decision of Delhi High Court in

the case "Prakash Rattan Lal Vs. Mankey Ram"1 to contend that in

1 (2010)ILR 3 Delhi 315

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paragraph 4 of the decision, the Court has observed that the parties

are required to lead evidence limited to their pleadings and the

parties who are leading evidence cannot travel beyond pleadings,

failing which the sacrosancy of pleadings would come to an end and

the entire purpose of filing pleadings also stand defeated.

4. I have heard the learned Counsel for the parties and with

their assistance, I have also perused the impugned orders and the

relevant documents as placed on record. At the outset, it may be

observed that perusal of the averments as made in the petition as

filed before the family Court, would clearly indicate that the basic

case of the petitioner in seeking a decree of divorce was on the

ground of an ailment suffered by the respondent as alleged by the

petitioner. There were specific averments made in the petition which

as pointed out on behalf of the petitioner, were of substance to accept

the case of the petitioner that what was intended by the application

in question, was examine these witnesses to bring on record evidence

to substantiate the case which was already pleaded. A perusal of the

averments in the petition would clearly indicate that it is not a new

case which was being pleaded by the petitioner to allege such

ailment. In fact as noted above in paragraph 35(v), there is specific

reference to the medication for the ailment and reimbursement of

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money through a NGO. The petitioner has also received documents

which supports the pleadings, which can be proved, according to the

petitioner, by examining the said witnesses. If this be the case, then,

surely the reasons as recorded in the impugned order to dismiss the

application as filed by the petitioner, cannot be accepted. The

observations of the learned Judge of the Family Court, in the

impugned order that for summoning these witnesses, it would

actually require specific pleadings, mentioning the names of the

witnesses or the name of Kripa Foundation with which institute the

witnesses are associated, are not well founded. In my opinion, the

basic case of the petitioner that respondent is suffering from this

ailment and in that regard, she is receiving treatment as also

reimbursement from NGO was a sufficient foundation to sustain the

petitioner's application for summoning the said witnesses. The

reasoning as set out by the learned Judge of the Family Court in the

impugned order and more particularly in paragraph 3, in my opinion,

does not stand the test of law even as Order XVI Rule 1 of the CPC

would contemplate. Merely because the names of these witnesses

were not furnished initially, it does not mean that the petitioner can

never be allowed to examine these witnesses. The Court would

always exercise discretion considering the facts and circumstances of

the case and judiciously, in considering such applications, as the one

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in question. This is a case where the petitioner had set out he

purpose for which he intends to examined these witnesses.

5. As regards the contention as urged on behalf of the

respondent as now the cross examination of the petitioner was

concluded and that even in the cross examination, there is no support

which can be found to sustain such application, also cannot be

accepted. A perusal of the cross examination shows that in

paragraph 82, the petitioner has clearly deposed that the petitioner

had produced prescription of Kripa Foundation to show that the

respondent used to buy medicine worth Rs.10,000/-, Rs.15,000/- per

month. This would clearly indicate that it is not a case that the

petitioner without any basis, or trying to improve his case, has filed

the application. In any event the cross examination of the petitioner

appears to have been concluded on 17 December 2016 whereas the

application in question to summons the said witnesses came to be

filed on 29 September 2016 that is much before the cross

examination of the petitioner would be concluded. In the fact

situation, it would have been appropriate for the learned Judge of the

Family Court to decide this application before proceeding with the

cross examination, so that the parties are appropriately positioned to

lead their evidence. The reliance on behalf of the respondent to the

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order passed by this Court dated 14 June 2013 in Writ Petition

No.11375 of 2012 dismissing the petition filed by the petitioner,

against an order passed by the Family Court, where the petitioner's

prayer before the Family Court, for medical examination of the

respondent, was rejected, would not assist the respondent. This Court

considering the stage of the proceedings had declined to interfere in

the said order. However, perusal of the said order passed by this

Court, would clearly indicate that it can have no relevance as far as

the issue in hand is concerned. The issue in hand arises on a separate

and independent application, which came to be filed by the petitioner

seeking prayers for summoning of the two witnesses as noted above

and which has been rejected on the grounds completely

unsustainable in law.

5. In the light of the above discussion, the petitions need to

succeed. The application as moved on behalf of the petitioner dated

29 September 2016 to summon the two witnesses is required to be

allowed. Hence, the following order:-

ORDER

1. The applications dated 29 September 2016 of the

petitioner for summoning the witnesses -Father Mr.Joe Pereira and

Dr.Menon of the Kripa Foundation, stand allowed. The impugned

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orders dated 10 January 2017 as challenged in the above petitions,

are set aside.

2. Learned Judge of the Family Court shall endeavour to

complete the evidence in respect of the said witnesses after granting

an opportunity to the respondent to cross examine the said witnesses.

The entire exercise be undertaken within a period of three months

from today.

3. The petitions are allowed in the above terms. No costs.

[G.S.Kulkarni, J.]