IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.49357-358 OF 2016 (GM-FC) BETWEEN:
RUDRESH NANDA B S S/O SADANAND B.S., AGED ABOUT 37 YEARS, R/O D.NO.473, 6TH CROSS ROAD, 10TH MAIN, RMV EXTENSION, BANGALORE-560080. … PETITIONER (By Smt. KSHAMA NARAGUND, ADV., FOR Smt. SONA VAKKUND ADV.,) AND:
SMT RADHIKA RUDRESH W/O RUDRESH NANDA B.S, AGED ABOUT 37 YEARS, R/O NO.327, RAJATADRI, GROUND FLOOR, 2ND CROSS, TALAKAVERI LAYOUT AMRUTHALLI, BANGALORE-560092. … RESPONDENT (SERVED AND UNREPRESENTED) - - -
These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to call for relevant records, quash the order dtd.13.7.2016 vide Annex-D passed on IA filed by the petitioner U/s.151 CPC praying to club MC No.978/2016 with MC No.3047/2013 both pending on the file of III Addl. Principal Judge, Family Court, Bangalore and etc.
These Petitions coming on for Preliminary Hearing in ‘B’ group this day, the Court made the following:-
ORDER Smt.Kshama Naragund, learned counsel for Smt.Sona Vakkund, learned counsel for the petitioner.
None for the respondents.
2. In these petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 13.07.2016 as well as 19.08.2016 passed by the Family Court.
3. Facts giving rise to the filing of the petitions briefly stated are that the petitioner – husband has filed a petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) seeking dissolution of the marriage whereas the respondent– wife has filed an application under Section 9 of the Act seeking restitution of the conjugal rights.
The petitioner made an application seeking consolidation of both the proceedings. However, the aforesaid application has been rejected by the Family Court on the ground that in the proceeding under Section 13 of the Act, the evidence has commenced. The petitioner has also challenged the validity of the order dated 19.08.2016 by which prayer made by her for further cross-examination of RW-1 has been rejected.
4. Learned counsel for the petitioner submitted that the Family court ought to have appreciated that in case both the proceedings are not consolidated, the same may give rise to the possibility of conflicting judgments. It is further submitted that the petitioner had cross-examined RW-1 on 13.07.2016. However, the cross-examination could not be completed on the said date and therefore, the prayer was made to grant one opportunity. However, the Family Court refused to grant the opportunity. Thereupon, the petitioner filed an application under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) seeking permission to recall RW-1. However, the aforesaid application has been rejected by an order dated 19.08.2016. In the aforesaid factual background, the petitioner has approached this Court.
6. I have considered the submissions made by the learned counsel for the petitioner and have perused the record. The Family Court ought to have appreciated that in case the proceedings under Sections 9 and 13 of the Act are not consolidated, the same shall give rise to a possibility of conflicting judgments. However, the aforesaid aspect of the matter has not been appreciated by the Family Court while passing the impugned orders. It is also note worthy that the petitioner had cross- examined RW-1 on 13.07.2016 and thereafter, had sought further opportunity to cross-examine RW-1. However, the aforesaid prayer was rejected by the Trial Court. Subsequently, the petitioner filed an application under Order XVIII Rule 17 of the Code. The aforesaid application has been rejected. For the aforementioned reasons, the impugned orders dated 13.07.2016 and 19.08.2016 are quashed and set aside. It is directed that the proceedings under Sections 9 and 13 of the Act pending between the parties shall be tried together. It is further directed that the respondent shall keep herself available for cross-examination on such date as may be fixed by the Family Court and on the aforesaid date, the petitioner shall cross-examine RW-1. It is made clear that no further opportunity for this purpose shall be granted to the petitioner.
With the aforesaid directions, the petitions are disposed of.
Sd/- JUDGE RV