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Smt Vani Girish vs Sri K N Girish on 3 December, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3RD DAY OF DECEMBER, 2018

BEFORE

THE HON’BLE MR. JUSTICE B. VEERAPPA

WRIT PETITION Nos.51525-51526/2018 (GM-FC)

Between:

Smt. Vani Girish
W/o K.N. Girish,
Aged about 40 years,
R/at Hosuru Village,
Gowribidanur Taluk,
Chikkaballapura District – 562 102.
… Petitioner
(By Sri. Murali .M, Adv.)

And:

Sri. K.N. Girish
S/o late P.V. Nagaraj Shetty,
Aged about 43 years,
R/at Mandipet,
Ramanagar Town,
Ramanagar District – 562 159.
… Respondent
(By Sri. K.G. Sudhakar, Adv.)

These Writ Petitions are filed under Articles 226
227 of the Constitution of India, praying quash the
impugned order dated 11.10.2018 passed on
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application filed under Section 151 of CPC and
application filed under XVIII Rule 17 of CPC, made in G
and WC No.100/2014 on the file of learned IV
Additional Principal Judge, Family Court, Bengaluru
and etc.,

These Petitions coming on for Orders, this day, the
court made the following :

ORDER

The present writ petitions are filed by the

petitioner-wife against the order dated 11.10.2018

rejecting the applications filed by the petitioner for

recalling PW-1 for cross-examination and re-opening the

case in G and WC No.100/2014 by the learned IV

Additional Principal Judge, Family Court, Bengaluru.

2. The respondent-husband filed petition under

Sections 7 and 17 of Guardian and Wards Act for

custody and declaration that the present respondent-

husband is the natural guardian of his minor children.

The petitioner-wife filed objections to the main petition.

When the matter was posted for cross-examination of
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PW-1, the present petitioner Smt. Vani Girish has not

proceeded for cross-examination of PW-1 inspite of

granting sufficient time. Thereafter, respondent/present

petitioner-wife filed two applications i.e., under Section

151 of the Code of Civil Procedure to re-open the case

and permit the respondent/present petitioner to lead

cross-examination of PW1 and under Order XVIII Rule

17 of the Code of Civil Procedure to recall the order

dated 29.06.2018 and permit the respondent/present

petitioner to cross-examine PW-1 contending that when

the matter was posted on 29.06.2018 for cross-

examination of PW-1, the counsel for the respondent-

wife sought time, but the Hon’ble Court was pleased to

take the cross-examination of PW1 as ‘Nil’ and posted

the matter for respondent evidence. She further

contended that she is residing in a remote place of

Chikkaballapura District and her children are school

going and due to their school admission and

arrangement of school fee, she could not contact the
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advocate and discuss about the case and therefore filed

the applications for the relief sought for. The said

applications were resisted by the husband by filing

objections.

3. The Family Court considering the

applications and objections, by the impugned order

dated 11.10.2018 rejected the applications mainly on

the ground that though the matter is of the year 2014

and inspite of granting sufficient time, the respondent

did not utilize the same. Hence, the present writ

petitions are filed.

4. I have heard the learned counsel for the

parties to the lis.

5. Sri Murali.M, learned counsel for the

petitioner-wife contended that the impugned order

passed by the Family Court rejecting the applications is

erroneous and contrary to the material on record. He
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would further contend that the respondent-husband

filed petition against the petitioner-wife for custody of

the child. An opportunity should have been provided to

the petitioner to defend her case and the same has not

been considered by the Family Court. Therefore, he

sought to allow the writ petitions.

6. Per contra, Sri. K.G. Sudhakar, learned

counsel for respondent-husband sought to justify the

impugned order and contended that inspite of granting

sufficient time, the petitioner-wife did not attend the

proceedings only on the ground that she is getting

monthly maintenance and she is in the habit of filing

applications to drag the Court proceedings. Therefore,

he sought to dismiss the petitions.

7. Having heard the learned counsel for the

parties, it is an undisputed fact that the present

respondent filed the petition Sections 7 and 17 of
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Guardian and Wards Act for custody of the child,

raising various grounds and the same is resisted by the

present petitioner-wife by filing objections. The

impugned order clearly depicts that sufficient time was

granted to the present petitioner-wife for cross-

examination of PW1 and to lead her evidence. The same

was not availed. Therefore, the Family Court has closed

the cross-examination of PW1 and posted for arguments

and at that stage, the applications came to be filed.

8. Since the rights of the parties are involved,

an opportunity has to be given finally to the wife to

cross-examine PW1 and file application to lead evidence,

if any. Both the counsel for the parties stated that the

matter is posted for arguments tomorrow i.e.

04.12.2018. In order to give one more opportunity, it is

suffice to direct the present petitioner to cross-examine

PW1 by tomorrow and file an application to lead her

examination-in-chief, if any. If such an application is
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filed, the Family Court is directed to proceed with the

matter for cross-examination of PW1 and permit to lead

her evidence and it is for the respondent/husband to

cross-examine the present petitioner on the date to be

fixed by the learned Judge, subject to payment of cost of

Rs.5,000/- (Rupees Five thousand only) payable to the

respondent-husband.

9. For the reasons stated above, the writ

petitions are allowed. The impugned order dated

11.10.2018 passed by the Family Court is hereby

quashed. The applications filed by the petitioner for re-

opening and re-calling are allowed. Petitioner is

permitted to cross-examine PW1 and to file application

to lead her evidence, if any, on payment of cost of

Rs.5,000/- (Rupees Five thousand only) by 04.12.2018.

It is made clear that the petitioner shall not seek any

further adjournment and shall proceed with the case. If

the petitioner fails to appear before the Family Court on
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04.12.2018 i.e., tomorrow to proceed with the case, it is

for the Family Court to proceed with the matter in

accordance with law.

Ordered accordingly.

Sd/-

JUDGE

UN

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