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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.52404/2016 C/w. WRIT PETITION NOs.148-151/2017 (GM-FC)
IN WRIT PETITION NO.52404/2016
BETWEEN:
SMT. PANKAJA NILKANTH, W/O. VASUDEV PANDURANG NAYAK, AGED ABOUT 37 YEARS, R/AT.NO.258, 2ND MAIN, 4TH CROSS, SRI AMARESHWAR NIVAS, SAI ENCALVE, NEAR M.S. RAMAIAH CITY, J.P. NAGAR 7TH PHASE, BANGALORE – 560 076. …PETITIONER
(BY SRI.HEMANTH KUMAR.D., ADV.)
AND:
VASUDEV PANDURANG NAYAK, S/O. PANDURANG RAMA NAYAK, AGED ABOUT 39 YEARS, OFFICE AT SYMPHONY SERVICES CORPORATION, BDS, “PRATEEKSHA”, NO.216, 2ND CROSS, COFFEE BOARD LAYOUT, HEBBAL KEMPAPURA, BANGALORE – 560 024. …RESPONDENT
(BY SRI.PRABHUGOUD.B.TUMBGI, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.29.08.2016 PASSED IN M.C.NO.2747/2012 ON THE FILE OF IV ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE VIDE ANNEX-E SO FAR AS TAKING CROSS EXAMINATION OF PW1 AS NIL AND THEREBY PERMITTING THE PETITIONER HEREIN TO FURTHER CROSS EXAMINE PW1 AND PW2.
IN WRIT PETITION NOs.148-151/2017 (GM-FC)
BETWEEN:
SMT. PANKAJA NILKANTH, W/O. VASUDEV PANDURANG NAYAK, AGED ABOUT 41 YEARS, R/AT.NO.258, 2ND MAIN, 4TH CROSS, SRI AMARESHWAR NIVAS, SAI ENCALVE, NEAR M.S. RAMAIAH CITY, J.P. NAGAR 7TH PHASE, BANGALORE – 560 076. …PETITIONER
(BY SRI.HEMANTH KUMAR.D., ADV.)
AND:
VASUDEV PANDURANG NAYAK, S/O. PANDURANG RAMA NAYAK, AGED ABOUT 42 YEARS, OFFICE AT SYMPHONY SERVICES CORPORATION, BDS, “PRATEEKSHA”, NO.216, 2ND CROSS, COFFEE BOARD LAYOUT, HEBBAL KEMPAPURA, BANGALORE – 560 024. …RESPONDENT
(BY SRI.MOHAN KUMAR.H., ADV.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.15.11.2016 PASSED ON I.A NOs.12, 13, 14 AND 15 IN M.C.NO.2747/2012 ON THE FILE OF IV ADDL. PRINCIPAL JUDGE, FAMILY COURT AT BANGALORE VIDE ANNEX-H AND THEREBY ALLOW THE APPLICATIONS FILED BY THE PETITIONER.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Since the parties are same in both these petitions, they are taken up together and disposed of by this common order.
The petitioner is the wife of the respondent. Due to certain marital disputes, they have instituted the proceedings before the Court below. While, the husband has instituted the petition seeking dissolution of marriage, the wife has instituted petition for restitution of conjugal rights. Both the petitions are being considered together before the Court below.
The husband has examined himself and also examined a witness. Their evidence is recorded as P.W.1 and P.W.2. Since, the wife failed to cross-examine the
said witnesses, the Court below has discharged them through order dated 29.08.2016 passed in M.C.No.2747/2012.
In that light, the petitioner is assailing the said order and seeking an opportunity to cross-examine P.W.1 and P.W.2 through the petition in W.P.No.52404/2016. Further, the wife had also filed the applications in I.A.Nos.12, 13, 14 and 15 under Order XVI, Rule 6 r/w. Section 151 of the Code of Civil Procedure, 1908 seeking that summons be issued for production of the Income Tax Returns for the past 5 years. The Court below, on considering the same through the order dated 15.11.2016 has dismissed the said applications. The said order is assailed in W.P.Nos.148-151/2017.
Since, the cross-examination of P.W.1 is stated to have not been completed by the wife, as the requisite documents have not been produced, a composite consideration of these petitions would resolve
the issue with regard to the appropriate documents, if any to be produced and in that light, the cross- examination to be completed in accordance with law. In that view, at the outset, the prayer made in W.P.Nos.148-151/2017 is to be taken note.
Through the applications filed in I.A.Nos.12, 13, 14 and 15 before the Court below, the wife has sought for a direction to summon the Income Tax returns not only of the husband, but also the other family members of the husband.
The Court below, while rejecting the applications has arrived at the conclusion that the applications do not contain proper reasons for which the prayer is sought. In that regard, having perused the applications filed and the nature of the contentions that is putforth herein, no doubt, for a consideration whether the Court below ultimately has to grant the relief of the dissolution and in that context, any consequential order relating to financial arrangement between the parties is
to be made, certainly, the actual income of the parties is also an aspect which is required to be noticed by the Court below.
Therefore, to that extent, if the wife is seeking to establish the income of the husband, the prayer would be justified. However, there is no justification on the part of the wife to seek for the documents as sought in I.A.Nos.13, 14 and 15 relating to the other family members of the husband when through I.A.No.12, the wife is seeking the Income tax particulars/income particulars of the husband which would indicate that the husband is an Income Tax Assessee in his own right or there would be such other documents to establish his income.
Accordingly, the Court below insofar as rejecting the applications in I.A.Nos.13, 14 and 15 was justified. With regard to the prayer made in I.A.No.12, the need to issue summons to the Competent Authority may not arise at this juncture, since a direction to the
husband to produce his Income Tax returns or such other documents to show his income, before the Court below would suffice for the purpose of consideration. Needless to mention, despite the same, if the husband does not produce any documents to indicate his actual income before the Court below, certainly, the Court below would thereafter draw adverse inference on that aspect as provided in law and thereafter proceed with the matter. To that extent, I.A.No.12 filed before the Court below is allowed-in-part with a direction to the husband to produce such document. It is clarified that, if such document is not produced within the time frame to be provided by the Court below, the Court below may thereafter proceed in the matter and if need be, draw adverse inference in accordance with law.
Insofar as the prayer sought in W.P.No.52404/2016, though it is seen that the Court below has taken note of the opportunities that had been granted to the wife to cross-examine P.W.1 and P.W.2, keeping in view the nature of the consideration made in
the companion petition and also taking into consideration that the parties are litigating with regard to the matrimonial disputes, wherein the factual issues in any event will have to be brought before the Court below, to enable the Court below to take an appropriate decision in the matter, a consideration merely on default would not serve the interest of justice.
In that view, an opportunity to cross-examine P.W.1 and P.W.2 is to be granted to the wife within the time frame to be indicated by the Court below. Even thereafter, if the opportunity as granted is not utilized by the wife, the opportunity as granted would stand forfeited. In that view, the order dated 29.08.2016 passed in M.C.No.2747/2012 is set aside. The Court below is directed to recall P.W.1 and P.W.2, permit the opportunity of cross-examination on behalf of the wife. For the said purpose, the Court below shall fix a time frame within which the cross-examination is to be completed on the appearance of P.W.1 and P.W.2. If the
opportunity as granted is not utilized, the same shall stand forfeited.
In terms of the above, these petitions stand disposed of.
SD/- JUDGE
ST/AKV