Case Note & Summary
The petitioner, Manali Mandar Bhide (wife), filed a Writ Petition under Article 227 of the Constitution of India challenging the order dated 14th June 2017 passed by Family Court No.3, Pune, in P.A. No.46 of 2014. The Family Court had rejected her application (Exhibit-60) seeking permission to cross-examine the respondent-husband on his affidavit-evidence (Exhibit-24) filed on 25th November 2014 and additional affidavit-evidence (Exhibit-58) filed on 29th December 2016. The sole ground for rejection was that the affidavit-evidence was filed long back and no cross-examination was conducted. The High Court noted that the respondent's counsel had no objection to cross-examination on Exhibit-24. Regarding Exhibit-58, the court observed that since it was taken on record, the wife should have an opportunity to deal with it, especially as it contained subsequent events. The petition was allowed, the impugned order set aside, and the wife was permitted to cross-examine the husband on both affidavits. The matter was directed to be taken up on 6th November 2017.
Headnote
A) Family Law - Right to Cross-Examine - Affidavit-Evidence - The Family Court rejected the wife's application to cross-examine the husband on his affidavit-evidence solely on the ground of delay. The High Court held that the wife must be given an opportunity to cross-examine, especially when the additional affidavit-evidence was taken on record and contained subsequent events. The impugned order was set aside and the petition allowed. (Paras 3-7)
Issue of Consideration
Whether the Family Court erred in rejecting the wife's application to cross-examine the husband on his affidavit-evidence and additional affidavit-evidence.
Final Decision
The Writ Petition is allowed. The impugned order passed by the Trial Court on the application (Exhibit-60) is set aside. The Petitioner is given an opportunity to cross-examine the Respondent on both his earlier affidavit-evidence (Exhibit-24) and the additional affidavit-evidence (Exhibit-58).
Law Points
- Right to cross-examine
- Affidavit-evidence
- Opportunity of hearing
- Family Court proceedings
Case Details
2017 LawText (BOM) (10) 104
WRIT PETITION NO.10351 OF 2017
Dr. Shalini Phansalkar-Joshi, J.
Mr. Suraj Kudalkar for the Petitioner, Mr. Jaydeep Deo for the Respondent
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Nature of Litigation
Writ Petition under Article 227 of the Constitution of India challenging an order of the Family Court rejecting the wife's application to cross-examine the husband on his affidavit-evidence.
Remedy Sought
The petitioner-wife sought to set aside the Family Court's order and be permitted to cross-examine the respondent-husband on his affidavit-evidence and additional affidavit-evidence.
Filing Reason
The Family Court rejected the wife's application to cross-examine the husband on his affidavit-evidence solely on the ground of delay.
Previous Decisions
The Family Court No.3, Pune, by order dated 14th June 2017, rejected the wife's application (Exhibit-60) for cross-examination.
Issues
Whether the Family Court erred in rejecting the wife's application to cross-examine the husband on his affidavit-evidence and additional affidavit-evidence.
Submissions/Arguments
The petitioner-wife argued that she should be allowed to cross-examine the husband on his affidavit-evidence and additional affidavit-evidence.
The respondent-husband's counsel conceded to cross-examination on the earlier affidavit-evidence (Exhibit-24).
Ratio Decidendi
When an affidavit-evidence is taken on record, the opposite party must be given an opportunity to cross-examine the deponent, especially when the affidavit contains subsequent events. Delay alone is not a sufficient ground to deny the right to cross-examine.
Judgment Excerpts
The only ground on which the Trial Court has rejected the permission to cross-examine is that, already the affidavit-of-evidence (Exhibit-24) was filed long back and no cross-examination was conducted.
If the Trial Court has already taken it on record, then, it follows that the Petitioner should get an opportunity to deal with that affidavit-evidence also and to cross-examine the Respondent on that affidavit also.
Procedural History
The Family Court No.3, Pune, in P.A. No.46 of 2014, rejected the wife's application (Exhibit-60) for cross-examination on 14th June 2017. The wife filed a Writ Petition under Article 227 before the Bombay High Court, which was heard and allowed on 6th October 2017.
Acts & Sections
- Constitution of India: Article 227
