Vipulbhai Dhamjibhai Rathod vs Alka Vipul Rathod

Abdullah Gulamahmed Uraizee, J

Heard Mr. Sandeep R. Limbani, learned advocate for the petitioner and Mr. Hemal Shah, learned advocate for the respondent.

Following substantive prayers are made in this petition:

(a) To quash and set aside the order dated 26.6.2019 passed by the Principal Judge, Family Court, Morbi below Exhibit 77 in Family Suit No. 5/2017 and also order dated 26.7.2019 passed by the Principal Judge, Family Court, Morbi below Exhibit 78 and 79 in Family Suit No. 5/2017; and thereby be pleased to reopen the rights of the petitioner to examine the witnesses as prayed for in application Exhibit 78 and 79;

(b) Pending the admission, hearing and final disposal of this petition, be pleased to stay order dated 26.7.2019 passed by the Principal Judge, Family Court, Morbi below Exhibit 78 and 79 in Family Suit No. 5/2017; and thereby be pleased to reopen the rights of the petitioner to examine the witnesses as prayed for in application Exhibit 78 and 79;

Brief facts giving rise to the present petition as could be gathered from the petition and its accompaniments are that:

2.1 The marriage between the petitioner and respondent was solemnized at Rajkot on 27.11.2004 as per the Hindu Rites and Rituals. Out of the wedlock, a son named Rushik was born on 03.06.2009. The marriage between the petitioner and respondent hits rough weather and the respondent was subjected to mental and physical cruelty by the petitioner and his family members. On 08.07.2012, the respondent was beaten by the petitioner and driven out from the matrimonial home on wearing cloths along with son. She therefore, took shelter at her parental home at Rajkot along with her son Rushik. Thereafter, on 11.07.2012, the petitioner came and took away forcefully the minor Rushik. The respondent tried to get up and made attempts to join her matrimonial home but the petitioner refused to take her back. The respondent therefore, file Hindu Marriage Petition (HMP) No. 37 of 2013 under Section 9 of the Hindu Marriage Act, 1955 ("HM Act" for short) for restitution of conjugal rights in the Court of learned Principal Senior Civil Judge at Morbi. After conclusion of the evidence of the respondent, the matter was posted for evidence of petitioner.

2.2. The petitioner gave application Exhibit 77 for adjournment to cross-examine handwriting expert, who could not be examined, as the report of handwriting expert was awaited in other proceedings between the parties. The learned trial Judge by order dated 26.06.2019 rejected the application by a detailed order and also close the stage of the evidence of the petitioner. Thereafter, the petitioner moved an application Exhibit 78 for reopening his stage of evidence to produce affidavit of another witness, who was present in the Court was rejected by learned trial Judge by order dated 26.07.2019. The petitioner has therefore, filed present application to assail the order passed below Exhibit 77 and 78.

Mr. Limbani, learned advocate for the petitioner submitted that no prejudice is likely to be caused to the respondent wife, if the orders passed below Exhibit 77 and 78 are set aside and the petitioner is permitted to adduce the evidence as the respondent will have an opportunity to cross-examine the witness. He vehemently submitted that the delay which is attributed to the petitioner in para 2 of the order below Exhibit 77 for making himself available for cross-examination, should not come in the way of doing justice. He, therefore, submitted that the report of handwriting, which is awaited in another proceedings between the parties is relevant in the proceedings under Section 9 of the HM Act under Section 6 of the Evidence Act is the transaction is the similar. He therefore, stoutly urged that to sub-serve the ends of justice, the orders passed below Exhibit 77 and 78 may be quashed and set aside and the petitioner may be permitted to examine the handwriting expert and other witnesses.

Mr. Hemal Shah, learned advocate for the respondent has supported the orders passed below Exhibit 77 and 78. He submitted that though Section 21(b) of the HM Act prescribed six months time for disposal of the proceedings the main petition preferred by the respondent before lower Court is pending since 2013. He further submitted that it is vividly clear from para 2 of the order passed below Exhibit 77 that the respondent almost after one year for making himself available for cross-examination. It is further submitted that the report of the handwriting expert is called for in the proceedings, the respondent has instituted under Domestic Violence Act. According to his submission, though necessary details are sent to the handwriting expert for his opinion around more than two years ago, so far report is not received in those proceedings. He submits that if the petition is allowed till the report of the handwriting expert is received in those proceedings, in the petition preferred by the respondent under Section 9 of the HM Act, would unnecessarily be protracted and delayed. He submits that the learned trial Judge has assigned cogent reasons for rejection of both the applications, which do not call for interference in this petition, under Article 227 of the Constitution of India.

It is manifestly clear that by seeking reopening of the stage of evidence vide application Exhibit 78 to tender affidavit in chief of witness, who was present in the Court on the date of submission of the application, essentially it appears that the petitioner wants to examine the handwriting expert after the report is received in analogous proceedings. This is very clear from the prayer made in present petition, as the petitioner has challenged both the orders passed below Exhibit 77 and 78.

The respondent had preferred application under Section 9 of the HM Act for restitution of conjugal rights in the year 2013. It is vividly clear from para 2 of the order passed below Exhibit 77 that the respondent concluded her evidence within a very short time and thereafter, the petitioner has submitted his affidavit in lieu of examination-in-chief on 27.08.2014. Thereafter, he went on seeking time by submitting as many as 7 motions for adjournment and ultimately, made himself available for cross-examination on 29.07.2015 i.e. almost after one year submitted his affidavit. It is thus very clear that the respondent has tried to delay the proceedings of Exhibit 9 application. This tendency of delaying proceedings on the part of the petitioner is essentially based that the learned trial Judge rejected Exhibit 77 application and closing his right of evidence, the petitioner has thereafter preferred Exhibit 78 application for reopening right of evidence to tender affidavit in lieu of examination-in-chief of witness, who was present on particular day. It appears that by submitting the application, the petitioner has indirectly attempted to further delay the proceedings as once the stage of evidence is reopened, obviously he would seek time to examine handwriting expert after receiving the report in analogous proceedings. Be that as it may, it is also worthwhile to note that the report of handwriting expert is sought in analogous proceedings and no such application for sending the handwriting of the respondent for the opinion of handwriting expert is made in the proceedings under Section 9 of the HM Act instituted by the respondent. It reveals that in analogous proceedings, necessary details are sent to handwriting expert for his opinion in the year 2017, still, however, so far the report is not received. If the orders passed below Exhibit 77 and 78 are set aside, it would cause further delay as rightly submitted by Mr. Hemal Shah, learned advocate for the respondent that time consumed by handwriting expert by forwarding his opinion is not under the control of the petitioner. Considering overall facts of the case, I am of the view that the orders passed below Exhibit 77 and 78 in Family Suit No. 5 of 2017 do not warrant interference in this petition under Article 227 of the Constitution as the learned trial Judge has assigned cogent reasons for rejecting those applications.

So far the submission of Mr. Limbani, learned advocate for the petitioner that handwriting of respondent which are sent for the opinion of the handwriting expert are parts of the sale transaction as contemplated under Section 6 of the Indian Evidence Act is concerned, I am of the view that this is premature stage for expressing earlier opinion on his submission.

For the foregoing reasons, the petition is devoid of merits and is hereby dismissed, however, without costs. Notice is discharged.

Civil Application No. 1 of 2019:

In view of the disposal of main petition, the Civil Application does not survive and hence, the same is disposed of.