Allowed

Smt. Dipika Goyal v. Amit Kumar Agrawal

Chhattisgarh HC9 Sept 2022WP227/190/2022

Case brief

AI extract

What is this about?

Writ petition challenging the Family Court's order closing the petitioner's right to cross-examine witnesses in a custody matter. The High Court held that denying cross-examination to a mother during the pandemic violates natural justice and set aside the orders.

What did the court decide?

Impugned orders dated 04.02.2021, 15.03.2021, and 07.09.2021 set aside; petitioners granted liberty to cross-examine respondent and witnesses.

Smt. Dipika Goyal Vs Amit Kumar Agrawal — Child Custody and Guardianship | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 190 of 2022

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Smt. Dipika Goyal, W/o Shri Amit Kumar Agrawal, Aged About 32 Years,

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Arth Goyal, S/o Amit Kumar Agrawal, Aged About 9 Years,

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Aadwika Goyal, D/o Amit Kumar Agrawal, Aged About 5 Years,

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Petitioner Nos. 2 & 3 through their Natural Guardian Mother Namely Smt. Dipika Goyal W/o Shri Amit Kumar Agrawal, Aged About 32 Years, All are R/o Village Pathalgaon (Koyla Factory Gali) Ward No. Tahsil and Police Station Pathalgaon, District Jashpur (Chhattisgarh). ---- Petitioners

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Versus

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Amit Kumar Agrawal, S/o Shri Suresh Kumar Agrawal, Aged About 34 Years, R/o Village Pathalgaon (Raigarh Road), Tahsil and Police Station Pathalgaon, District Jashpur (Chhattisgarh).

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---- Respondent

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For Petitioners : Mr. Anurag Singh, Advocate

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For Respondent : Mr. Sunny Agrawal, Advocate

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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09.09.2022

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1. This petition is filed against the order dated 04.02.2021 and 15.03.2021, whereby the opportunity to cross-examine the respondent/applicant and other witnesses has been closed and vide order dated 07.09.2021 the application moved by the petitioners/non-applicants under Section 151 of C.P.C. has been rejected by the learned Family Court, Jashpur in Misc. Civil Case No. 3/2019.

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1. The facts of the case are that the respondent/applicant filed application under Section 7(1) read with Section 25 of Guardian and Wards Act, 1890 for custody of petitioner Nos. 2 & 3. The application was filed inter alia on the ground that marriage between the petitioner No.1 and respondent was solemnized on

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24.04.2008 and through their wedlock they were blessed with petitioner No.2 on 05.08.2009 and petitioner No.3 on 13.02.2014. It is further stated that on 27.12.2017 the petitioner No.1 took the petitioner Nos. 2 & 3 with her and proceeded to some unknown place. Thereafter, complaint was made and they were found in the house of Nitish Singh, who was residing in Banaras. It is further pleaded by the respondent that the petitioner Nos. 2 & 3 are not getting proper care and attention, therefore, he sought custody of the petitioner Nos. 2 & 3. The petitioners filed reply to the application and denied its contents and allegations were made by petitioner No.1 against respondent that he is having love affair with another lady. It is further alleged that when family members had gone to Maihar, the brother-in-law of the respondent tried to establish physical relation with the petitioner No.1. The incident was narrated to the respondent but no response was given by him.

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1. The case filed by the respondent was registered on 22.02.2019 and thereafter, issues were framed on 26.07.2019 and matter was fixed for recording evidence of the applicant witnesses. In that proceeding the petitioners moved application under Order 7 Rule 11 of C.P.C. alongwith application under Section 24 of Hindu Marriage Act and both applications were decided on 11.10.2019 and thereafter, the matter was fixed for recording evidence on 31.10.2019. On 21.11.2019 the petitioner No.1 was proceeded ex-parte and case was fixed for further hearing on 26.11.2019. An application under Order 9 Rule 9 of CPC was moved on 27.11.2019 and matter was fixed for hearing on the same on 06.12.2019 but due to non representation on behalf of the petitioners, the same was proceeded ex-parte. The petitioners appointed one counsel to argue the application filed under Order 9 Rule 9 of CPC and same was allowed. On 06.03.2020 the application under Section 17 Rule 1 of CPC was filed by the petitioner No.1 for adjournment on account of examination of her children and case was fixed on 20.03.2020. The petitioner No.1 could not appear due to out break of Covid19 on 20.03.2020, therefore, the proceedings of the Court was terminated and it was resumed on 10.12.2020. Case was fixed

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for examination of respondent on 04.02.2021 and on that day right to cross-examination was closed by the learned Family Court and matter was fixed for recording evidence of the other witnesses of respondent. On 15.03.2021 the application under Order 17 Rule 1 of CPC was moved by the petitioner No.1 as the counsel engaged by her was not having good health but the same was rejected and opportunity of cross-examine the respondent and his witnesses was closed by the learned Family Court.

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1. Another application under Section 151 of CPC was filed before the learned Family Court by petitioner No.1 making specific prayer to grant permission to cross-examine the respondent and his witnesses and same was rejected vide order dated 07.09.2021 on the ground that right to cross-examination of the witnesses has already been closed.

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1. Learned counsel for the petitioners submits that the order passed by the learned Family Court is erroneous, it was not possible for the petitioner No.1 to appear during outbreak of Covid-19 pandemic and learned trial Court failed to appreciate that the right to cross-examination is a valuable right and its denial is against the principle of natural justice.

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1. On the other hand, learned counsel for the respondent opposes the arguments advanced by the learned counsel for the petitioners and submits that sufficient opportunities were granted to the petitioners but petitioner No.1 failed to cross-examine the respondent and his witnesses. He further submits that learned Family Court has closed right to cross-examine the respondent and his witnesses after considering all the aspects.

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1. I have heard learned counsel for the parties and perused the record. From records, it appears that most of the impugned orders have been passed during the Covid-19 pandemic period. It further appears from the records that sufficient opportunities have been granted to the petitioner No.1 to cross-examine the respondent and his witnesses. It is well settled that right to crossexamine the witnesses is a valuable right and it can not be curtailed on technical grounds. It is also not in dispute that from

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March, 2020 till December, 2021 there was outbreak of Coronavirus (Covid-19) and naturally it was not possible for a lady to attend the Court proceedings during the pandemic. Learned Family Court ought to have granted one more opportunity as the matter relates to custody of minor children of petitioner No.1. Considering all these aspects, this writ petition is succeeds and orders passed by the learned Family Court on 04.02.2021, 15.03.2021 and 07.09.2021 are hereby set-aside subject to payment of cost of Rs. 2,000/- to the respondent.

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1. The petitioners would be at liberty to cross-examine the respondent and his witnesses on a date to be fixed by the learned Family Court.

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1. It is made clear that no further adjournment shall be granted to the petitioners. With these observations, this petition is allowed .

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Nadim

Smt. Dipika Goyal v. Amit Kumar Agrawal

Case brief

What is this about?

What did the court decide?

Smt. Dipika Goyal v. Amit Kumar Agrawal

Case brief

What is this about?

What did the court decide?

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