IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NOS.23145-23146/2016 (GM-FC) BETWEEN:
SMT. SHALINI AGED ABOUT 29 YEARS W/O ANANDAKUMAR D/O PUSHPARAJU R/AT NO.1/900 G.P.MALLAPPAPURAM KOLLEGALA TOWN AND TALUK CHAMARAJANAGAR DISTRICT – 571 440 …PETITIONER (BY SRI.RENUKARADHYA R.D., ADV.) AND:
ANANDAKUMAR AGED ABOUT 35 YEARS S/O SHIVAMURTHY R/AT SHESHAPPA BUILDING YAGGANAHALLI MAIN ROAD SUNKADAKATTE BANGALORE – 560 091 …RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED PRL. JUDGE, FAMILY COURT AT BENGALURU IN M.C.3341/2012 DATED 16.03.2016 AT ANNEXURE – F AND CONSEQUENTLY MAY BE PLEASED TO ALLOW THE APPLICATIONS ON IT’S FILE AS PRAYED FOR AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 16.03.2016 passed in M.C.No.3341/2012.
2. The petitioner is the wife of the respondent.
The respondent herein has instituted the petition in M.C.No.3341/2012 seeking dissolution of the marriage dated 04.01.2008. In the said proceedings, the respondent herein has examined himself as PW-1. The petitioner has not cross-examined PW-1 and in that light, the Court below having discharged the witness, has posted the case for arguments since, the respondent did not also choose to tender evidence.
3. The petitioner accordingly filed an application under Order 18, Rule 17 r/w. Section 151 of the Civil Procedure Code seeking that the Court below recall the order dated 03.02.2016 and permit the petitioner herein to cross-examine PW-1 and thereafter tender her evidence. The Court below, through the impugned order dated 16.03.2016 has rejected the application. It is in that light, the petitioner is before this Court.
4. The respondent though served is unrepresented. Having taken note of the contention as put forth by the petitioner, a perusal of the order impugned dated 16.03.2016 no doubt would indicate that the learned Judge of the Court below has taken into consideration the earlier proceedings in the matter which has led to discharge of PW-1 without being cross- examined.
5. No doubt, in a normal circumstance, the Court below could have been held to be justified in passing such order, however what is necessary to be kept in view is that the instant proceedings relates to the matrimonial relationship between the parties and when the respondent herein, who is the husband of the petitioner is seeking dissolution of marriage, the aspects relating to the allegation as contained in the petition, based on which PW-1 has tendered his evidence would also arise for consideration.
6. In that view, merely because PW-1 has not been cross-examined, if the Court below relies on the allegation to dissolve the marriage, great prejudice would be caused to the petitioner and in that view, it would be appropriate that, if the petitioner is granted the benefit of cross-examining PW-1 and to tender her evidence within a time frame, the Court below would have the entire matter before it to ultimately take a decision on merits instead of deciding due to default.
7. Therefore, in the interest of justice, the order dated 16.03.2016 is set aside. Consequently, the application filed by the petitioner under Order 18, Rule 17 r/w. Section 151 of Civil Procedure Code is allowed. The Court below is directed to recall the order dated 03.02.2016 and direct PW-1 to make himself available for cross-examination and thereupon permit the petitioner herein to tender her evidence. In this regard, the Court below may fix a time frame to complete the process and if such time frame is fixed by the Court below, the petitioner shall avail the opportunity within the said time frame, failing which the indulgence as granted by this Court would stand forfeited.
In terms of the above, these petitions stand disposed of.
Sd/- JUDGE ST