Rani Vs. M.K.Girish  INSC 1240 (20 July 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO.4558 OF 2009 (Arising out of S.L.P. (C)
No.17452 of 2008) B.V. Smitha Rani ...Appellant(s) Versus M.K. Girish
...Respondent(s) O R D E R Leave granted.
learned counsel for the appellant.
of service of notice, nobody has entered appearance on behalf of the respondent
to contest the prayer made in this appeal.
parties were married on 28.5.2003. After sometime, the appellant- wife filed
Matrimonial Case No.82/2005 for grant of divorce on the ground of cruelty. In
support of her case, the appellant examined herself as PW-1 on 7.9.2006.
day, the respondent-husband remained absent and his lawyer did not cross-
examine the appellant. Thereafter, the case was posted for evidence of the
respondent on 28.9.2006. At that stage, the respondent applied for recording
his evidence by video conferencing. The Family Court rejected his prayer and
the special leave petition filed by him was dismissed by this Court. On
28.9.2006, the respondent's counsel filed vakalatnama and written statement.
The Family Court rejected the written statement on the ground of undue delay.
Thereupon, the respondent filed writ petition no.1031 of 2006, which was ...2/-
-2- allowed by the High Court and a direction was issued to the Family Court to
allow the respondent to contest the case on merits.
furtherance of the High Court's directive, the Family Court fixed the next date
as 7.11.2006 for cross-examination of the appellant, but the respondent did not
avail that opportunity. On the next two dates also, the respondent's counsel
did not cross-examine the appellant. Instead, an application was filed on
behalf of the respondent for amendment of the written statement, which was
dismissed on 11.1.2007. Simultaneously, the Family Court closed the evidence of
the respondent and fixed the case for arguments. Application filed on behalf of
the respondent for recall of that order was dismissed on 23.1.2007 and the
petition filed by the appellant was decreed on 22.2.2007.
appeal preferred by the respondent, the High Court remanded the case to the
Family Court with the direction to give final opportunity to cross- examine the
appellant (PW-1) and to adduce his evidence. That order has been challenged in
heard learned counsel for the appellant and perused the records, we are
convinced that the High Court was not justified in remitting the matter to the
Family Court with a direction to give final opportunity to the respondent to
cross-examine the appellant and to adduce his evidence. The premise on which
the High Court passed the impugned order, namely, non-grant of adequate
opportunity to the respondent to cross-examine the appellant and adduce his
evidence is clearly erroneous, because, as mentioned above, after disposal of
writ petition no.
filed by the respondent, the Family Court fixed the case on three ...3/- -3-
different dates for cross-examination of the appellant, but the respondent did
not avail that opportunity. In this view of the matter, the Family Court had
rightly closed the evidence of the respondent, heard the arguments and
pronounced the judgment and the High Court committed serious error by remitting
the matter for giving further opportunity to the respondent to cross-examine
the appellant and adduce his evidence.
the appeal is allowed, impugned order rendered by the High Court is set aside
and the matter is remanded to it to dispose of the appeal on merits in
accordance with law after giving opportunity of hearing to the parties.
......................J. [B.N. AGRAWAL]
......................J. [G.S. SINGHVI]
July 20, 2009.