Mr. Francisco Dias vs Mrs. Francisca D''Souza

A.P. Lavande, J.—Heard Mr. R. Desa, learned Advocate for the Petitioner and Ms. Vijeta Poulekar, learned Advocate for the Respondent.

Rule. By consent heard forthwith.

By this petition under Article 227 of the Constitution of India, the Petitioner challenges orders dated 31st March, 2011 and 18th May, 2011 passed by the learned Judicial Magistrate, First Class, Mapusa in Criminal Case No. O.A.(DVA) No. 246/2010/B.

The Respondent who is wife of the Petitioner filed an application u/s 12 of the Protection of Women from Domestic Violence Act, 2005 ("The Act" for short) against the Petitioner herein bearing Criminal Case No. O.A. (DVA) No. 246/2010/B. The said application was opposed by the Petitioner by filing reply.

Respondent examined herself and in the absence of the Petitioner and his Advocate cross examination was closed. The Petitioner filed application dated 15.2.2011 seeking recall of the said order which was dismissed by order dated 31st March, 2011. Thereafter the matter was fixed for evidence of the Respondent who is the Petitioner in the present petition. On 18th May, 2011 an application for adjournment was filed on behalf of the Respondent in the said case on the ground that he was sick for which no objection was given by the Applicant in the said case. Learned Magistrate dismissed the application on the ground that no medical certificate was produced and consequently closed the evidence of the Respondent. Both these orders have been challenged by filing the present petition.

Mr. De sa, learned Advocate for the Petitioner submitted that serious prejudice would be caused to the Petitioner in the event the Petitioner is not allowed to cross examine the Respondent and to lead his own evidence in support of his case. He further submitted that non-appearance of the Advocate for the Petitioner on 1st February, 2011 was on account of mistake on the part of his advocate and therefore learned Magistrate ought to have allowed the application for recall filed by the Petitioner. In so far as order dated 18th May, 2011 is concerned Mr. De sa submitted that even the Respondent herein had given no objection and as such learned Magistrate ought to have given an opportunity to the Respondent in that case to lead his evidence.

Ms. Poulekar, learned Advocate for the Respondent supports the impugned orders and submitted that in spite of several opportunities having been given to the Respondent in that case, he had not availed of the same. Learned Advocate further submitted that the Petitioner has not complied with the interim order passed by the Magistrate in terms of Section 23 of the Act directing the Petitioner to pay monthly amount of Rs. 10,000/-(Rupees ten thousand only) and the entire amount due in terms of the order has not been paid and on some occasions, the Petitioner herein has deposited the amount belatedly and therefore no interference is warranted with the impugned orders.

Having heard the learned Advocate for the Petitioner and the Respondent and having perused the record, I am of the considered opinion that it would be just and proper to set aside both the orders dated 31st March, 2011 and 18th May, 2011 in as much as if the impugned orders are not set aside serious prejudice would be caused to the Petitioner.

In terms of the impugned orders the Petitioner is not able to cross examine the Respondent and is also not allowed to lead his own evidence.

In my opinion this is a fit case in which the impugned orders deserve to be set aside by imposing heavy costs against the Petitioner and by giving appropriate directions. Moreover it is to be noted that on the application dated 18th May, 2011 seeking adjournment filed by the Petitioner herein, the Respondent had given no objection. Considering over all circumstances of the case, I am of the considered view that both the orders are liable to be set aside - 6 -and are hereby set aside, subject to following conditions:

i. Petitioner shall pay costs of Rs. 20,000/-(Rupees twenty thousand only) to the Respondent. Costs shall be deposited before the learned JMFC, Mapusa within a period of two weeks from today. Upon deposit of the costs, liberty to the Respondent to withdraw the same.

ii. The Petitioner shall deposit the amount, if any, due in terms of Section 23 of the Act before the learned Magistrate within a period of two weeks from today. Needless to mention that after the amount is deposited, liberty to the Respondent to withdraw the same.

iii. In the event Petitioner fails to deposit the costs and also the amount due in terms of interim order this order shall stand automatically recalled.

Subject to the aforesaid conditions the impugned orders are set aside. Interim Order dated 20th June, 2011 staying the further proceedings in O.A.(DVA) No. 246/2010/ B stands vacated. Parties either personally or through their advocates to appear before learned JMFC, Mapusa on 26th July, 2011 at 10.00a.m. The parties shall not seek unnecessary adjournment and in the event adjournment is sought on an unsustainable ground, Magistrate is free to pass appropriate order in accordance with law. Both the parties to co-operate in early disposal of criminal case No. O.A.(DVA) No. 246/2010/B and the learned Magistrate shall dispose of the same expeditiously and in any case on or before 30th March, 2012.

Rule is made absolute in aforesaid terms.