Allowed

Monika v. Dharmendra

Rajasthan HC12 Jul 2024CW/11013/2024

Case brief

AI extract

What is this about?

High Court allowed petition setting aside Family Court order denying cross-examination. Directed defendant be given final opportunity to cross-examine witness upon paying court-determined cost, subject to retry if cost or appearance is not met.

What did the court decide?

Impugned order set aside; defendant granted final opportunity to cross-examine witness AW-2 Bhagwati Devi upon payment of appropriate costs to be fixed by Family Court.

Monika Vs Dharmendra — Matrimonial and Divorce | Rajasthan HC (2024)

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[2024:RJ-JD:28460]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 11013/2024

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Monika W/o Dharmendra Vyas D/o Shri Om Prakash Vyas, Aged About 27 Years, Resident Of Pratapgarh, At Present R/o Behpur, P.s. Bhavgarh, Tehsil - Daloda, District - Mandsaur, Madhya Pradesh.

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----Petitioner

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Versus

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Dharmendra S/o Shri Kantilal Vyas, Resident Of 1/222, Housing Board, Ward No. 2, Pratapgarh, District - Pratapgarh (Raj.).

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----Respondent

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For Petitioner(s) : Mr. Suresh Kumar Maru Mr. Manish Dhebana

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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12/07/2024

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The present writ petition has been preferred against the order impugned dated 01.06.2024 passed by the Judge, Family Court, Pratapgarh in Matrimonial (Original) Suit No.84/2019 (RJPG0C-000222-2019) whereby the application as preferred on behalf of the defendant to cross-examine the plaintiff’s witness Bhagwati Devi has been declined. 2. Learned counsel for the petitioner submits that the affidavit of the said witness Bhagwati Devi was filed on 03.01.2024 and the next date fixed for her cross-examination was 06.05.2024. On that day, the witness herself submitted before the Court that she being an Anganwadi worker and there being an important meeting scheduled, she could not stay for cross-examination. On the said submission been made by the witness, she was directed to remain present on the next date i.e. 07.05.2024. On that date, because of some unforeseen circumstances, counsel representing the

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defendant could not appear before the Court and on the very next date, the cross-examination of the said witness was closed. An application for re-opening the same was preferred by the defendant on the very next date but the same was rejected on the same date.

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Learned counsel further submits that it was only a lapse on part of the counsel that the witness could not be cross-examined and hence, in the interest of justice, one opportunity ought to have been granted.

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Heard learned counsel and perused the record.

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In the present case, the order impugned reflects that the affidavit of the plaintiff witness Bhagwati Devi (AW-2) was filed on 03.01.2024. A perusal of the order-sheets as placed on record (Annexure-3) makes it clear that it is only for the first time on 06.05.2024 that the said witness was produced before the Court. On that date, witness herself submitted before the Court that she is not able to stay for cross-examination as an urgent meeting was scheduled and on the said submission been made by her, she was directed to remain present on the very next date. It was only on one date i.e. 07.05.2024 when none appeared for the defendants and on the same date, the opportunity to cross-examine the said witness was closed. An application for re-opening the same was also preferred on the very next date which was also rejected on the very same date.

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In view of the above facts, this Court is of the clear opinion that one opportunity ought to have been granted to the defendant to cross-examine the witness. It is not the case that despite several opportunities been granted, the defendant did not cross-

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examine the witness. The witness presented herself on 06.05.2024 and it was only because of her inconvenience that she could not have been cross-examined. In the said circumstances, appropriate opportunity ought to have been granted to the defendant to cross-examine her. In the overall circumstances, the petition deserves to be allowed.

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Accordingly, the present writ petition is allowed . The order impugned dated 01.06.2024 passed by the Family Court, Pratapgarh in Matrimonial (Original) Suit No.84/2019 (RJPG0C000222-2019) is set aside. It is hereby directed that the defendant shall be granted one last opportunity to cross-examine witness AW-2 Bhagwati Devi. For the said purpose, the defendant shall be under an obligation to pay appropriate cost to be determined by the learned Family Court to be paid to the said witness.

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It is made clear that if the defendant fails to cross-examine the witness on the date as fixed by the learned Family Court, no further opportunity would be granted for the said purpose. It is also made clear that if the defendant fails to pay the cost to the witness, the present order shall cease to operate. In both the above eventualities, the learned Family Court would be at liberty to proceed further in accordance with law.

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Stay petition and the pending applications, if any, also stand disposed of.

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(REKHA BORANA),J

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261-Vij/-

Monika v. Dharmendra

Case brief

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Monika v. Dharmendra

Case brief

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