IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD BETWEEN:
W.P.No.32479 OF 2013(GM-FC) AND W.P.Nos.32480-32481 OF 2013 Mrs. Anitha Sarah Joseph Wife of Mr. Joseph George Aged about 39 years Residing at No.158 Sector ‘B’ Jalvayu Vihar Kammanahalli Bangalore-560 084. … Petitioner (By Sri. Christropher.E, Advocate) AND:
Mr. Joseph George Son of Mr. K.M. George Aged about 43 years Residing at Navi Mumbai Working as Investment Banking Executive In Barclays Bank, PLC No.801/808, Ceejay House Shivsagar Estate Dr. Annie Besant Road Worli, Mumbai-400018. ... Respondent (By Smt. S.K. Prathima, Advocate) These writ petitions are filed under Articles 226 & 227 of the Constitution of India praying to call for records in Crl.Misc.No.427/2008 pending on the file of the I Addl. Family Judge, Bangalore, and after examining the legality and the validity of the orders dted:11.07.2013, 17.7.2013 & 9.07.2013 set aside the orders vide Annexures G, K and M & etc.
These writ petitions, coming on for preliminary hearing ‘B’ Group, this day, the Court, made the following:
ORDER These writ petitions are directed against the orders dated 11.07.2013, 17.07.2013 and 19.07.2013 vide Annexures G, K and M passed by the I Additional Family Court, Bangalore in C.Misc.No.427/2008.
2. The case of the petitioner is that the petitioner was married to the respondent on 17.12.2001 at Pune as per the Christian Canon Law and subsequent to the said marriage, petitioner-wife resided with the respondent- husband making the same their matrimonial home. From the wedlock, petitioner and respondent were blessed with two sons namely Master Timothy and Master Titus.
Subsequently, they were not living together. Hence, the petitioner has filed C.Misc.No.427/2008 for maintenance. In the said proceedings an interim application was filed seeking for interim maintenance. The Family Court vide order dated 29.05.2009 directed the respondent to pay each of the minor children Rs.4,000/- per month. Being aggrieved by the quantum of maintenance awarded, the petitioner has filed W.P.No.26541/2009 seeking for enhancement of the maintenance. This Court, by order dated 13.09.2010 disposed of the writ petition enhancing the maintenance from Rs.4,000/- to Rs.6,000/-.
3. It is the further case of the petitioner that the petitioner has filed an application I.A.No.8 under Order 16 Rule 6 of CPC for production of documents, I.A.No.10 under Section 151 of CPC for recalling the witness and I.A.No.11 filed under Section 151 of CPC for further cross- examination. After hearing the parties the Family Court has rejected the applications filed by the petitioner. Being aggrieved by the same, she has filed these writ petitions.
4. Sri Joshua Hudson Samuel, learned counsel for the petitioner submits that during the cross-examination the respondent has stated that “I do not wish to share Form No.16A issued by the Bank to me. I have Housing Loan and personal loan. I am paying Rs.40000 per month towards Housing Loan. Approximately towards Rs.10,000/- personal loan. It is true that the Bank in which I am working gives housing loan. It is true that I have taken housing loan from my Bank and so also personal loan. The witness voluntaries that he has also taken other personal loan. It is true that the additional personal loan and personal loan both of them by taken after filing of this petition. I have taken both these loans to meet family expenses litigation expenses and to re pay the earlier personal loans taken by me.” In view of this statement, it is necessary to file an application for production of the above said documents and the salary certificate to determine the income of the respondent.
5. He further submits that the respondent himself in his statement of objections filed to the application filed by the petitioner has stated that the respondent is ready to furnish the salary certificate if the Court directs. The Trial Court even though has given a finding that for determination of quantum of maintenance salary certificate is necessary, but in respect of Form No.16A and housing loan details are concerned, it is not necessary to determine the maintenance. This finding of the Trial Court is contrary to the provisions of the Act and the material on record. Without considering the admission made by the respondent, the Court only on the ground that there is earlier direction of this Court for expeditious disposal of the matter, I.A.No.8 is dismissed. Since the application for production of documents has been dismissed, the Court has dismissed the application for recalling the witness and also the application for further cross-examination on the very same ground that there is a direction from the High Court to dispose of the matter expeditiously and at this juncture it is not necessary to allow the petitioner to cross-examine the witness.
6. Per contra, Smt.S.K.Prathima, learned counsel for the respondent submits that in respect of the production of the documents and the salary certificate, even though the application is dismissed the Family Court has given a specific direction to produce the salary certificate for the current year. Therefore, the question of reconsidering that application would not arise. She further submits that for determination of maintenance, only the income which is earned by the petitioner is necessary and not the other documents which are sought by the petitioner. In respect of permission to cross-examine is concerned, without marking the documents the petitioner cannot confront the same to the witness. Therefore, the Family Court has rightly rejected the application filed by the petitioner herein.
7. Heard learned counsel for the parties and perused the writ papers.
8. It is not in dispute that the parties are husband and wife, they have married on 17.12.2001 at Pune as per Christian Law, in the wedlock the parties were blessed with two sons. Since there is a dispute between the petitioner and the respondent, they were not living together. The petitioner has filed a petition for maintenance in C.Misc.No.427/2008. In that, an application I.A.No.8 was filed under Order 16 Rule 6 of CPC for production of the documents. No doubt, in the cross-examination the respondent has stated that “I do not wish to share Form No.16A issued by the Bank to me. I have Housing Loan and personal loan. I am paying Rs.40000 per month towards Housing Loan. Approximately towards Rs.10,000/- personal loan. It is true that the Bank in which I am working gives housing loan. It is true that I have taken housing loan from my Bank and so also personal loan. The witness voluntaries that he has also taken other personal loan. It is true that the additional personal loan and personal loan both of them by taken after filing of this petition. I have taken both these loans to meet family expenses litigation expenses and to re pay the earlier personal loans taken by me”, in this case respondent has already produced the pay slip and he has also admitted that he is ready to produce current year salary certificate. To determine the income salary certificate is necessary and details regarding housing loan and personal loan are not necessary, hence the Family Court was justified in dismissing the application. Even though it has dismissed I.A.No.8, respondent was directed to produce the salary certificate for the current year. Therefore, I do not find any error in the order passed by the Trial Court on I.A.No.8.
9. In so far as I.A.Nos. 10 and 11 are concerned, even though the Family Court had directed the respondent to produce the salary certificate, it has dismissed the application for cross-examining the respondent. The only finding given by the Family Court is that there is a direction from the High Court for expeditious disposal of the case and at that stage it cannot be permitted to cross-examine the respondent. In the earlier order the Family Court mentions that cross-examination of the witness as closed for the present. Once the parties are permitted to produce the documents other side has all the rights to cross-examine the witness related to that document.
10. Therefore, in my view, the Family Court has not given any justification in rejecting I.A.Nos. 10 and 11. In the interest of justice and to give one more opportunity to the parties, the orders passed by the Family Court dated 17.07.2013 and 19.07.2013, respectively, on I.A.Nos.10 and 11 in C.Misc.Petition No.427/2008 vide Annexures K and M are set aside. The matter is remitted back to the Family Court to recall the witness and permit the petitioner to cross-examine in respect of the documents which are produced by the respondent. Since there is a direction from this Court in earlier proceedings to dispose of the matter expeditiously, the Family Court is directed that on the next date of hearing i.e., on 19.02.2019, the petitioner shall cross-examine the witness on that day. If there is any inconvenience for the Court on that day, the same shall be done on the next date and no further adjournment shall be granted to the petitioner. The parties are at liberty to raise any objections at appropriate stage, if law permits. The Family Court is directed to pass appropriate orders in accordance with law.
With the above observations, the writ petitions stand disposed of.
Cm/-
Sd/- JUDGE