Dharmendrakumar Maganbhai ... vs Pushapaben Dharmendrabhai ...
2021 Latest Caselaw 4725 Guj

       C/SCA/4517/2020                               JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 4517 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                              NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                      YES

     Whether their Lordships wish to see the fair copy
 3                                                              NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution          NO
   of India or any order made thereunder ?

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          DHARMENDRAKUMAR MAGANBHAI PARMAR
                           Versus
 PUSHAPABEN DHARMENDRABHAI PARMAR D/O LAKSHMANBHAI
                   DUNGARBHAI PARMAR
=======================================
Appearance:
MS. JIGNA B SUCHAK(7004) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MRS NISHA M PARIKH(2397) for the Respondent(s) No. 1
=======================================

CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                         Date : 25/03/2021

                         ORAL JUDGMENT

1. This writ petition under Articles 226 and 227 of the Constitution of India is preferred by the petitioner - original plaintiff - husband with a prayer to quash and set aside the orders dated 21.01.2020, passed by the learned Family Court No.

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2, Ahmedabad below exhs. 47 and 48 in Hindu Marriage Petition (HMP) No. 2268 of 2017, whereby, the learned Family Judge has rejected the applications of the petitioner - plaintiff to issue witness summons as well as to call for the material witness. The learned trial Judge has also closed the right of the petitioner to lead further evidence.

2. On 20.02.2020, following order was passed by this Court in this writ petition:

"Learned counsel for the petitioner states that the petitioner is willing to declare with the court below the names of the witnesses sought to be examined as also the relevancy of their necessity. In view of the above statement, issue notice for final disposal returnable on 25.02.2020."

2.1 Pursuant to notice issued, learned advocate Ms. Nisha Parikh appeared for the respondent.

3. Rule. Learned advocate Ms. Parikh waives service for respondent. With the consent of the learned advocates for the respective parties, the matter is heard finally.

4. Facts in brief of the case on hand are that the petitioner and respondent are the legally wedded husband and wife, whose marriage was solemnized as per Hindu rites and rituals at Ahmedabad on 17.10.2002. Out of the said wedlock, they have a son namely "Aayush", now aged about 17 years. It is the case of the petitioner that, after some time of the marriage, the respondent - wife grew quarrelsome and kept on picking fights with the petitioner and his family. That, after bearing a child, her behaviour worsened and finally, the respondent left her

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matrimonial home in July 2009 and since then, they are staying separate from each other. Thereafter, the respondent filed complaint under section 498A of the Indian Penal Code, 1860 (IPC) and also an application under section 125 of the Criminal Procedure Code, 1973 (CrPC) in which, the Court, initially granted maintenance to tune of Rs.1,500/- to child only, which subsequently, on an application under section 127 of CrPC, increased to Rs.4,500/- per month. In view of irretrievable break down of the marriage, the present petitioner filed aforesaid HMP before the Family Court, Ahmedabad for divorce in which also, the respondent - wife preferred application under section 24 and sections 25 and 26 of the Hindu Marriage Act, 1955 (for brevity, 'the said Act') for maintenance. In the said petition, the petitioner filed applications exhs. 47 and 48 for witness summons and to call for the material witness, respectively, which came to be rejected by way of impugned orders, so also, the right of the petitioner to lead further evidence also came to be closed and hence, this petition.

4.1 Ms. Jigna Suchak, learned advocate for the petitioner, with all vehemence at her command, submitted that the learned trial Judge has committed a grave error in rejecting the applications exhs. 47 and 48 as referred herein above, filed by the petitioner herein, inasmuch as in the divorce petition being HMP No. 2268 of 2017, under the provisions of section 13 of the said Act, filed by the present petitioner, the respondent - wife has filed an application for interim maintenance under section 24 as well as under sections 25 and 26 of the said Act for interim maintenance and permanent alimony stating therein that due to mall is shutdown, she has no means of income and she is at home only and accordingly, it is submitted that the respondent - wife has

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suppressed the material fact and hence, the petitioner, by way of application exhs. 47 and 48, had prayed for to issue witness summons to the Human Resource person or any concerned person from Mayflower Hospital, Ahmedabad to examine him with service related documents of the respondent herein as well as to call for the material witness, respectively, to prove his case, however, the learned trial Judge, without considering the facts and circumstances of the case and without proper application of mind, mechanically rejected the said applications and also closed the right of the petitioner to lead further evidence. It is submitted that for effective adjudication of the case, the said applications ought to have been allowed by the learned trial Judge. It is further submitted that the learned trial Judge has observed that the petitioner, with a view to prolonging the matter, has filed the applications for witness summons, however, the learned trial Judge has failed to consider the fact that the petitioner is already saddled with the liability to pay the maintenance to the tune of Rs.4,500/-. She also submitted that the learned trial Judge has also failed to consider the doctrine of dominus litis and the petitioner - plaintiff is the master of suit. It is submitted that for effective adjudication of the case of the petitioner, the witness summons is required to be issued and accordingly, it is urged that in the given set of facts, present petition may be allowed and the impugned orders may be set aside.

4.2 In support of her case, the learned advocate for the petitioner has relied upon following decisions:

i) of Madras High Court in N. Senthilkumar v. V. Tamilselvi, 2011-1-L.W.758;

      ii)      of Madras High Court in R. Ravi v. I. Pandiyarajan,





        C/SCA/4517/2020                                JUDGMENT



      2007 (4) CTC 133;

iii) of High Court of Andhra Pradesh in Nankani Kishan v. M. Shankar Narayana & Anr., 2001 SCC Online AP 1112;

iv) of this Court in Criminal Revision Application (For Maintenance) No. 747 of 2016 between Jiteshbhai Devjibhai Vachhani v. State of Gujarat & 1, dated 13.10.2016;

v) of this Court in Criminal Revision Application (For Maintenance) No. 378 of 2016 between Pushpkamt Mohanlal Bohara v. State of Gujarat & 4, dated 04.10.2016;

vi) of this Court in Criminal Revision Application (For Maintenance) No. 214 of 2016 between Nileshbhai Chhaganbhai Choudhary v. State of Gujarat & 1, dated 21.06.2016.

4.3 Per contra, learned advocate Ms. Nisha Parikh for the respondent, while heavily opposing the present writ petition and supporting the impugned orders, submitted that the learned trial Judge has committed no error which requires interference at the hands of this Court. It is submitted that the petitioner has filed the divorce petition and has already examined certain witnesses and hence, there is no need to examine any further witness. She further submitted that, by the applications in question, the sole objective of the petitioner is to prolong the matter and thereby, to harass the respondent - wife. It is submitted that it may be that the petitioner is ordered to pay maintenance of Rs.4,500/-, however, the said fact has nothing to do with the applications in question. It is submitted that the learned trial Judge has rightly observed that the petitioner has already examined four witnesses and now, there is no need to examine further witnesses and the applications appears to be filed with a view to prolonging the matter. Thus, making above submissions, she requested that

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present petition may not be entertained and urged to dismiss the same.

5. Regard being had to the submissions advanced by the learned advocates for the respective parties and considering the averments made in the petition so also, perusing the papers available on record, it appears that in the divorce petition filed by the present petitioner, the respondent has preferred application for interim maintenance with a specific case, as is put before the learned Court below, that she is not serving anywhere and has no means of income and hence, the petitioner had filed two application viz. exhs. 47 and 48, respectively for issuing witness summons and to call for the material witness, on the ground that the respondent - wife is serving with Mayflower Hospital, Ahmedabad and is earning and hence, for deciding his case effectively, examination of such witness is sine qua non. It further appears that the trial Court has rejected the said applications on the ground that the petitioner has already examined four witnesses and there is no need to examine further witness and the said applications appears to have been filed with a view to prolonging the matter. The learned trial Judge has also closed the right of the petitioner to lead further evidence.

5.1 In this regard, if the decision relied upon by the learned advocate for the petitioner in N. Senthilkumar (supra) is referred, it is observed therein as under:

"Summoning of witness need not be prevented and the examination of the doctor who is reported to have treated the respondent may be conducted and his evidence may enter into record - Witness may be examined and the Court shall take up the enquiry as per Order 32 Rule 15 C.P.C."

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5.2 Further, in the case of R. Ravi (supra) relied upon by the learned advocate for the petitioner, it has been observed as under:

"Code of Civil Procedure, 1908 (5 of 1908), Order 16, Rule 1

- Plaintiff sought issuance of summons to Tahsildar and Village Administrative Officer for being examined as witness - It is always open to parties to choose their own witnesses to examine so as to prove their case - It cannot be prevented by either parties - If irrelevant evidence is attempted to be brought on record by said process, it is always open to other party to raise objection regarding their irrelevancy with prayer not to record same - Summoning of witness cannot be stopped on such apprehension."

5.3 Further, in Nankini Kishan (supra), it has been held as under:

"In the opinion of this Court ample discretion is vested in the Court to permit a party to summon a witness whose name does not appear in the list to be submitted within fifteen days after settlement of the issues as per sub- rule(1) of Rule 1 of Order XVI of CPC. Further, the submission of list of witnesses under Order XVI Rule 1(1) cannot be considered to be mandatory though the word "shall" is used in sub-rule(1). It is well settled that in the absence of any penal consequences, for noncompliance with a rule, the provision must be deemed to be directory and not mandatory. Further, there is no provision in CPC that the case of the plaintiff or the defendant can be thrown out by trial Court on a mere ground that list of witnesses are required under Order XVI Rule 1(1) is not submitted to the Court within fifteen days after settlement of issues. This position may be compared with the procedure contained in Order IX of CPC. Order IX of CPC contains provisions enabling the Court to set defendant ex parte or to dismiss the suit for default on the happening of certain events contained therein. For instance, absence of the plaintiff when the suit is called or absence of the defendant when the suit is called after receiving summons. Such is not the case insofar as Order XVI Rule 1 of CPC is concerned."

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5.4 Further, in the case of Jiteshbhai Devjibhai Vachhani (supra), this Court has observed in paragraph 2 as under:

"...In any case, it is settled legal position that no litigant can be denied the opportunity to prove his case, unless it is clear that presence of such witnesses is not necessary at all. The factual details herein above makes it clear that in this case, details of investment is material evidence and, therefore, evidence to prove such issue is certainly necessary and material."

5.5 Further, in Pushpkamt Mohanlal Bohara (supra), in the similar set of facts to that of present one, this Court has observed in paragraph 6 as under:

"6. It is settled legal position that all the parties before the Court should get ample and sufficient chance to prove their case and when petitioner herein has produced on record a certificate issued by a Government Office and when now petitioner wants to prove such certificate by examining the person who has issued such salary certificate there is no reason for the Family Court to deny such request to issue witness summons for any reason whatsoever. Whereas the only reason or defence put forward by the respondent herein is to the effect that by such application practically petitioner is delaying the process. There is no substance in such defence because delay would not help the petitioner anymore because otherwise also he is paying Rs. 4800/- towards interim maintenance whereas as per salary certificate his monthly salary is only Rs. 530/- and therefore probably if such certificate is proved on record there may be change in order of monthly maintenance."

5.6 Last but not the least, in Nileshbhai Chhaganbhai Choudhary (supra), this Court has, in paragraph 4, observed as under:

"4. Otherwise also, law is well settled that generally Courts should not refuse a litigant to adduce any evidence and thereby, no Court can restrict to examine a witness,

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when any of the litigant is willing to examine any person as witness, more particularly when reference of such witness is very well available on record in any other mode than the application for witness summons. Practically, an application for witness summons does not require to disclose that for which purpose the witness is called upon. However, in the present case, the fact remains that there are serious allegations against the respondent No. 2 regarding her illicit relationship with proposed witness, namely Jaimin Ashwinbhai Patel and present applicant has filed certain documentary evidence to prove such relationship and therefore, now, he wants to call upon such witness to prove his allegations against respondent No. 2. It cannot be ignored that the present applicant has even disclosed on record that practically, though respondent No. 2, is claiming maintenance as his wife, she has given birth to a child because of her relationship with such Jaimin Ashwinbhai Patel, and in the birth certificate of such child, they have disclosed such name. Copy of birth certificate is there on file at page No. 83, which confirms such fact. Therefore, if applicant wants to ascertain such relationship, there is no reason to restrict him from calling any witness, including Jaimin Ashwinbhai Patel irrespective of pendency of application for couple of years, because, practically, applicant has filed such application for witness summons immediately after examining two witnesses on his behalf and therefore, there is no delay on his part."

5.7 Adverting to the facts of the instant case, the petitioner had preferred application exh. 47 for issuing witness summons to the Human Resource person or the concerned person of Mayflower Hospital, Ahmedabad with her service related documents to rebut the contention of the respondent herein that she was not serving any where and has no income, in an application for interim maintenance. Further, by application exh. 48, it was prayed to call for the material witness. It was the case of the petitioner before the learned Court below that earlier while dealing with the application filed by the respondent herein under section 125 of the CrPC, same assertions were made by the respondent herein, however, the petitioner had succeeded in rebutting the said fact by cogent evidence in the said proceedings. Further, it is also a

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case of the petitioner that the respondent has not come with clean hands and by way of application exh. 48, it is asserted that the respondent has suppressed material facts as regards her means of income and accordingly, to substantiate his case, witness, sought to be called for, is required to be examined.

5.8 If the impugned order below exh. 47 is perused, the learned trial Judge has observed that the applicant (petitioner herein) is keen on procrastinating the proceedings and the learned trial Judge did not deem it necessary to examine the witnesses sought to be examined by the petitioner herein, however, for coming to such a conclusion, no reason, much less a plausible reason, has been assigned by the learned trial Judge, save and except the reason of prolonging the matter. It is pertinent to note here that while rejecting the said application exh. 47, the learned trial Judge has also closed the right of the further evidence of the petitioner. Further, on an application exh. 48 for examining the material witness, the learned trial Judge has observed that, 'since the application of the applicant (petitioner herein) for examination of further witnesses has been rejected, present application is also rejected'. Thus, both the applications have been rejected by the learned trial Judge summarily, without assigning any cogent and plausible reasons.

5.9 From perusal of the above-referred pronouncements as relied upon by the learned advocate for the petitioner, it is abundantly clear that it is always open to parties to choose their own witnesses to examine so as to prove their case. It cannot be prevented by either parties. If irrelevant evidence is attempted to be brought on record by said process, it is always open to other party to raise objection regarding their irrelevancy with prayer not to record same and summoning of witness cannot be

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stopped on such apprehension. Further, in Jiteshbhai Devjibhai Vachhani (supra), this Court has observed that it is settled legal position that no litigant can be denied the opportunity to prove his case, unless it is clear that presence of such witnesses is not necessary at all. Further, in Pushpkamt Mohanlal Bohara (supra), in the similar set of facts, this Court has observed that, 'It is settled legal position that all the parties before the Court should get ample and sufficient chance to prove their case and when petitioner herein has produced on record a certificate issued by a Government Office and when now petitioner wants to prove such certificate by examining the person who has issued such salary certificate there is no reason for the Family Court to deny such request to issue witness summons for any reason whatsoever. Whereas the only reason or defence put forward by the respondent herein is to the effect that by such application practically petitioner is delaying the process. There is no substance in such defence because delay would not help the petitioner anymore because otherwise also he is paying Rs. 4800/- towards interim maintenance whereas as per salary certificate his monthly salary is only Rs. 530/- and therefore probably if such certificate is proved on record there may be change in order of monthly maintenance'.

5.10 The provisions of O.XVI R.1 of the CPC deals with list of witnesses and summons to witnesses. Sub-rule (1) of Rule 1 of Order XVI of CPC requires the parties to present to the Court the list of witnesses on or before such date not later than fifteen days after the date on which the issues are settled and sub-rule (2) enables a party to apply to the Court to issue summons to a person who is to be examined as a witness. O. XVI R.1(3) of CPC enables the Court to permit a party to the suit to summons any witness whether or not the name of such witness appears in the

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list referred in sub-rule (1) of Rule 1 of O.XVI of CPC provided sufficient cause for omission to mention the name is shown. Sub- rule (3) of Rule 1 of Order XVI of CPC reads as under:

"The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list."

5.11 Thus, ample discretion is vested in the Court to permit a party to summon a witness, where, the sufficient cause is shown for summoning such a witness. In the case on hand, the respondent - wife has filed interim maintenance application stating therein that she has no means of income to which, the present petitioner wants to rebut the said fact by calling upon the witness sought to be called for. It is also a case of the petitioner that in past also, he had succeeded in proving such a fact and accordingly, the learned trial Judge appears to have committed error in rejecting such application. It is trite principle of law that every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities, unless technicalities are so predominant that they overshadow the merits of the matter.

5.12 Further, the learned trial Judge has observed that since the petitioner has already examined four witnesses, there is no need to examine further witness. In this regard, if section 134 of the Evidence Act, 1872 is referred to, it speaks as under:

"134. Number of witnesses. -- No particular number of witnesses shall in any case be required for the proof of any fact. "

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5.13 Thus, a bare perusal of section 134 makes it clear that law does not lay-out any specific number of witness a party can examine for proof of any fact. Neither the Legislature nor the judiciary mandates that there must be a particular number of witnesses. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses.

5.14 Further, when under section 24 of the said Act, Maintenance pendente lite and expenses of proceedings is provided for where in any proceeding under the said Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable, and in the present case, when the respondent - wife has made such an application with a specific case that she has no means of income, in the considered opinion of this Court, to rebut the said assertion, examination of witnesses sought to be examined by the present petitioner is necessary and relevant.

5.15 Thus, in fleri in view of the aforesaid facts and circumstances of the case vis-a-vis in view of the aforesaid pronouncements, this Court is of the opinion that learned trial Judge has committed a grave error in not considering the applications of the petitioner and in closing his right to lead further evidence, that too, without assigning any cogent and plausible reasons. Accordingly, the present writ petition deserves

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to be allowed.

6. In view of the aforesaid discussions and observations, present petition succeeds and is allowed accordingly. Impugned orders dated 21.01.2020, passed by the learned Family Court No. 2, Ahmedabad below exhs. 47 and 48 in Hindu Marriage Petition No. 2268 of 2017, are hereby set aside. In view of above-referred order dated 20.02.2020 passed in the present writ petition, the petitioner is directed to declare before the learned Court below the names of the witnesses sought to be examined by him as also the relevancy of their necessity, to whom, the learned trial Court shall permit to the petitioner to examine in accordance with law.

6.1 The petition before the family Court is of the year 2017 and hence, the learned family Court is expected to make all endeavour to expedite the said petition and to dispose of the same. The parties shall cooperate the trial Court in such endeavour, without asking for any unnecessary adjournments.

6.2 Rule is made absolute accordingly with no order as to costs.

[ A. C. Joshi, J. ] hiren