Writ Petition No. 32019 of 2024 · The High Court · 2024
Case Details
- 1 - NC: 2025:KHC:11249 WP No. 32019 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.32019 OF 2024 (GM-FC) BETWEEN: MRS.R LAVANYA W/O B V SATISH AGED ABOUT 36 YEARS R/AT NO 37/4/33 SHAMBHAVI NILAYA, GROUND FLOOR, 2nd MAIN, OPPOSITE TO CORDIAL SCHOOL K.G.LAYOUT , VIJAYANAGAR BENGALURU - 560 040 PRESENTLY R/AT NO 37/4-33 SHAMBHAVI NILAYA OPPOSITE CORDIAL HIGH SCHOOL 8TH MAIN, VIJAYANAGAR BENGALURU - 560 040 (BY MR.MASKOOR HASHMI M.D., ADVOCATE FOR MRS.SHAHIDA KHANAM J.,ADVOCATE) AND: … PETITIONER Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA MR. B.V.SATISH S/O LATE B S VIJAYA KUMAR AGED ABOUT 43 YEARS R/AT 653 6TH MAIN ROAD, VIJAYANAGAR BENGALURU - 560 040 (BY SRI.K B NAVEEN KUMAR.,ADVOCATE) …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 16/11/2024 PASSED BY THE III - 2 - NC: 2025:KHC:11249 WP No. 32019 of 2024 ADDL. PRL. JUDGE, FAMILY COURT AT BENGALURU IN G AND WC NO. 31/2022 IN IA NO. 14 VIDE ANN-G. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, IN "B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL ORDER This petition is filed by the petitioner – mother challenging the order dated 16th November 2024 passed by the III Addl. Prl. Judge, Family Court, Bengaluru, on I.A. No.14 in G & WC No.31/2022, whereby the Family Court dismissed the said application. The petitioner is seeking to quash the impugned order and allow the said application and permit her to cross-examine the respondent. 2. The respondent – father filed a petition for custody and guardianship of the minor child – Master Vrushank S Yajaman before the Prl. Judge, Family Court, Bengaluru in G & WC No.31/2022. In the said custody petition, the respondent – father completed his examination-in-chief as - 3 - NC: 2025:KHC:11249 WP No. 32019 of 2024 PW.1 and the petitioner – mother partly cross-examined PW.1. When the matter came up before the Family Court on 23.9.2024, the petitioner – mother sought time for further cross-examination. The Family Court rejected the request for adjournment and directed the petitioner/mother to take necessary steps for appointment of Court Commissioner to proceed further for cross- examination. Subsequently, petitioner – mother filed I.A. No.14 seeking to recall the order dated 23.09.2024 and permit her to cross-examine PW.1. The said application came to be rejected by the Family Court, which is
Legal Reasoning
questioned before this Court in the present writ petition. [ 3. I have heard Mr. Maskoor Hashmi M.D., learned counsel for the petitioner as well learned counsel – Sri K.B. Naveen Kumar, learned counsel for respondent. 4. It is the contention of learned counsel for the petitioner – mother that when the matter came up before the Family Court on 23.9.2024, she filed a memo seeking - 4 - NC: 2025:KHC:11249 WP No. 32019 of 2024 adjournment and the same was rejected and the Family Court directed the petitioner – mother to take steps for appointment of Court Commissioner to proceed further for cross-examination of PW.1. Thereafter, petitioner – mother filed I.A. No.14 seeking to recall the order dated 23.9.2024 and permit her to cross-examine PW.1 as she was unable to cross-examine PW.1 on 23.9.2024 due to her counsel being unwell and the Family Court erroneously rejected the said application. It is contended that if the application is allowed, no hardship or inconvenience would be caused to the respondent – father. Further, it would be convenient for the petitioner to cross-examine PW.1 physically in the open Court rather than taking the help of Court Commissioner to cross-examine PW.1 and infact it is neither the case of the petitioner nor that of the respondent to cross-examine PW.1 through the Court Commissioner. It is also contended by learned counsel that if an opportunity is given, petitioner – mother would go on with the cross-examination of PW.1 in an expeditious manner without causing any further delay. - 5 - NC: 2025:KHC:11249 WP No. 32019 of 2024 On these grounds, he seeks to quash the impugned order by allowing the present petition. 5. Per contra, learned counsel representing the respondent – husband contends that several opportunities were granted to the petitioner – mother to cross-examine respondent – husband, who is PW.1 in the custody petition. It is submitted on 19.11.2022, PW.1 had completed his examination-in-chief and the matter was posted for cross-examination and from that date, petitioner has been taking time by partly cross-examining PW.1 and he is deliberately prolonging and protracting the proceedings for one reason or the other with an intention to cause delay. Infact, the Family Court has imposed costs to the petitioner – mother for unnecessary protraction of the proceedings. He also submits that the order dated 24.4.2023 regarding visitation rights given to the respondent – father has not been complied by the petitioner – mother and thus there is a disobedience of the order. On these grounds, he seeks to dismiss the petition. - 6 - NC: 2025:KHC:11249 WP No. 32019 of 2024 6. I have given my thoughtful consideration to the arguments advanced by learned counsels for the parties and perused the material on record. 7. It is borne from the records that the chief- examination of PW.1 completed on 19.11.2022 and subsequently, the petitioner – mother partly cross- examined PW.1. When the mater came up before the Family Court on 23.9.2024, the petitioner – mother sought time for further cross-examination. The Family Court rejected the request for grant of time on the ground that inspite of affording several opportunities, cross- examination of PW.1 has not been completed. Thereafter, petitioner – mother filed I.A. No.14 seeking to recall the order dated 23.9.2024 and permit her to cross- examine PW.1 on the ground that on 23.9.2024 her counsel could not appear before the Court for conducting the cross-examination of PW.1 due to ill-health and it was - 7 - NC: 2025:KHC:11249 WP No. 32019 of 2024 for the bonafide reasons. The said application came to be rejected by the Family Court by the impugned order. 8. The custody petition is of the year 2022. It is true that despite providing several opportunities and costs being imposed twice, cross-examination of PW.1 is not completed. Having heard learned counsel for the petitioner – mother and on perusal of the affidavit filed in support of I.A. No.14, it is seen that on 23.9.2024 her counsel could not appear before the Court for conducting cross- examination of PW.1 due to ill-health and her absence was for the bonafide reasons. It is also contended by learned counsel that if an opportunity is given, petitioner – mother would go on with the cross-examination of PW.1 in an expeditious manner without causing any further delay. Considering the facts and circumstances of the case, in the interest of justice, this Court deems it appropriate to afford one more opportunity to the petitioner– mother to cross-examine respondent – father (PW.1) by imposing certain conditions. - 8 - NC: 2025:KHC:11249 WP No. 32019 of 2024 9. Accordingly, I pass the following:
Decision
O R D E R i) The petition is allowed. ii) The impugned order dated 16th November 2024 passed by the III Addl. Prl. Judge, Family Court, Bengaluru on I.A. No.14 in G & WC No.31/2022 is hereby set aside. Consequently the order dated 23.9.2024 is hereby recalled. iii) The petitioner shall be permitted to cross-examine respondent – father (PW.1) without protracting the proceedings and the cross-examination shall be completed in two hearing dates by the petitioner herein. iv) It is made clear that if the petitioner does not cross-examine PW.1 on the dates fixed by the Family Court, the cross-examination shall be taken as ‘Nil’ and the Family Court is at liberty to - 9 - NC: 2025:KHC:11249 WP No. 32019 of 2024 proceed further in the matter, in accordance with law. v) This order is passed subject to the petitioner- mother paying costs of Rs.5,000/- (Rupees five thousand only) to the respondent – father, which shall be paid before the Family Court prior to cross-examination of PW.1. Payment of costs is the condition precedent. vi) Pursuant to cross-examination of PW.1, the parties shall proceed further and the Family Court shall dispose of the matter expeditiously. Sd/- (PRADEEP SINGH YERUR) JUDGE GSS List No.: 1 Sl No.: 55