Bombay High Court
Savita Dashrath Wagh vs Dashrath Damodhar Wagh on 8 January, 2018
Bench: R.V. Ghuge
WP/8378/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8378 OF 2016
Sau. Savita Dashrath Wagh
Age 35 years, Occ. Nil
R/o C/o Sadashiv Vitthal Vighe
13 Bunglows, Kopargaon,
Dist. Ahmednagar. ..Petitioner
Versus
Dashrath Damodhar Wagh
Age 42 years, Occ. Service
At present R/o Pardhade
Railway Station, Pachora,
District Jalgaon. ..Respondent
...
Advocate for Petitioner : Shri Ubale M.B.
Advocate for Respondent : Shri Kadu S.B.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: January 08, 2018
...
ORAL JUDGMENT :-
1. Heard the learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
WP/8378/2016
4. The petitioner is aggrieved by the orders dated 8.7.2016,
11.7.2016 and 19.7.2016 passed by the trial Court in HMP No. 4 of
2015. The petitioner has putforth prayer clause (A) in this petition,
which reads as under:-
"(A) To quash and set aside the impugned orders passed by
the learned Civil Judge S.D., Kopargaon, Dist. Ahmednagar,
below Exhs. 46, 48, 49 and 50 in H.M.P.No.4/2015, dated
8.7.2016, 11.7.2016 and 19.7.2016 respectively, and to allow
the pursis / applications and prayer respectively filed / made
by the petitioner, and the petitioner may kindly be permitted
to examine the witnesses in support of her case, as per
application vide Exh.48. The petitioner may also kindly be
permitted to cross-examine the respondent, by issuing an
appropriate writ, order or direction, as the case may be."
5. Since the petitioner prayed for staying the proceedings
initiated by her, seeking restitution of conjugal rights, this Court has,
by order dated 3.8.2016, stayed the proceedings.
6. There is no dispute that after the petitioner examined herself,
she moved an application Exhibit 48 seeking issuance of summons
to two witnesses, namely, Rajendra Sukhadeo Pagare and Arun
Bhagwanta Ranshur, who are her own witnesses. Since a list of
witnesses was not submitted, the trial Court rejected Exhibit 48.
WP/8378/2016
Prior thereto, the trial Court by order dated 8.7.2016, did not allow
the petitioner to file a list of witnesses as 'the stage was already
over'. The purshis dated 8.7.2016, mentioning the names of
Rajendra, Arun along with Ajay Sadashiv Dighe as witnesses was
rejected.
7. On 19.7.2016, the petitioner prayed for leave to examine her
witnesses and further prayed that as the petitioner desires to
approach the High Court, an opportunity be given. By order dated
19.7.2016, the said application Exhibit 50 was rejected. On the same
date, by order dated 19.7.2016, the witness of the respondent was
discharged by the trial Court recording that the petitioner's Advocate
has not cross-examined him.
8. Learned counsel for the respondent has strenuously
supported the impugned orders. In the alternative, he submits that if
this Court is inclined to entertain the petition, the maintenance
amount of Rs.7,000/- per month, paid by the petitioner from the
date of the filing of this petition, which is 1.8.2016, till the passing
of this order should be adjusted for the said duration of about 17
months as the petitioner has got the proceedings stayed and at the
same time has received the maintenance amount.
WP/8378/2016
9. I find that the trial Court had taken a pedantic view in this
matter. When the petitioner had submitted a purshis containing her
list of witnesses, the trial Court should have allowed the petitioner
to examine the witnesses by ensuring that the proceedings are not
delayed. HMP No. 4 of 2015 has been instituted on 5.1.2015 and as
such, it could not be said that the petitioner was trying to delay the
proceedings. The order dated 8.7.2016, therefore, is quashed and
set aside.
10. It is obvious that instead of examining her witnesses, the
petitioner moved application Exhibit 48 seeking issuance of
summons. Said application was rejected by the trial Court on the
ground that when one witness was examined on 11.7.2016,
application for issuance of summons should not have been filed.
11. I do not find that the view taken by the trial Court could be
sustained for the reason that the petitioner cannot be prevented
from examining her witnesses. The impugned order dated
11.7.2016, therefore, is quashed and set aside. Consequentially, the
order dated 19.7.2016 passed by the trial Court refusing an
adjournment to the petitioner to cross examine the witness of the
respondent, who was examined on the same date, is unsustainable
and therefore, quashed and set aside.
WP/8378/2016
12. This petition is, therefore, partly allowed. The petitioner is
permitted to examine her remaining two witnesses, namely,
Rajendra and Arun, expeditiously and preferably on two dates on
which the matter would be posted, of course, subject to the cross-
examination by the defendant and adjournments sought by the
defendant, if any. As the proceedings below were stayed by this
Court at the request of the petitioner, the maintenance amount paid
by the respondent / husband to the petitioner / wife for the period
1.8.2016 till 31.12.2017, which is a period of about 17 months,
would be adjusted in the further period of 17 months or till the
decision of the trial Court in HMP No.4 of 2014, whichever is
earlier.
13. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
