Point of law: In any case, it is settled legal position that no litigant can be denied the opportunity to prove his case, unless it is clear that presence of such witnesses is not necessary at all. The factual details herein above makes it clear that in this case, details of investment is material evidence and, therefore, evidence to prove such issue is certainly necessary and material.

JUDGMENT :

1. This writ petition under Articles 226 and 227 of the Constitution of India is preferred by the petitioner – original plaintiff – husband with a prayer to quash and set aside the orders dated 21.01.2020, passed by the learned Family Court No.

2, Ahmedabad below exhs. 47 and 48 in Hindu Marriage Petition (HMP) No. 2268 of 2017, whereby, the learned Family Judge has rejected the applications of the petitioner – plaintiff to issue witness summons as well as to call for the material witness. The learned trial Judge has also closed the right of the petitioner to lead further evidence.

2. On 20.02.2020, following order was passed by this Court in this writ petition:

“Learned counsel for the petitioner states that the petitioner is willing to declare with the court below the names of the witnesses sought to be examined as also the relevancy of their necessity. In view of the above statement, issue notice for final disposal returnable on 25.02.2020.”

2.1 Pursuant to notice issued, learned advocate Ms. Nisha Parikh appeared for the respondent.

3. Rule. Learned advocate Ms. Parikh waives service for respondent. With the consent of the learned advocates for the respective parties, the matter is heard finally.

4. Facts in brief of the case on hand are that the petitioner and respondent are the legally wedded husband and wife, whose marriage was solemnized as per Hindu rites and rituals at Ahmedabad on 17.10.2002. Out of the said wedlock, they have a son namely “Aayush”, now aged about 17 years. It is the case of the petitioner that, after some time of the marriage, the respondent – wife grew quarrelsome and kept on picking fights with the petitioner and his family. That, after bearing a child, her behaviour worsened and finally, the respondent left her matrimonial home in July 2009 and since then, they are staying separate from each other. Thereafter, the respondent filed complaint under section 498A of the Indian Penal Code, 1860 (IPC) and also an application under section 125 of the Criminal Procedure Code, 1973 (CrPC) in which, the Court, initially granted maintenance to tune of Rs.1,500/- to child only, which subsequently, on an application under section 127 of CrPC, increased to Rs.4,500/- per month. In view of irretrievable break down of the marriage, the present petitioner filed aforesaid HMP before the Family Court, Ahmedabad for divorce in which also, the respondent – wife preferred application under section 24 and sections 25 and 26 of the Hindu Marriage Act, 1955 (for brevity, 'the said Act') for maintenance. In the said petition, the petitioner filed applications exhs. 47 and 48 for witness summons and to call for the material witness, respectively, which came to be rejected by way of impugned orders, so also, the right of the petitioner to lead further evidence also came to be closed and hence, this petition.

4.1 Ms. Jigna Suchak, learned advocate for the petitioner, with all vehemence at her command, submitted that the learned trial Judge has committed a grave error in rejecting the applications exhs. 47 and 48 as referred herein above, filed by the petitioner herein, inasmuch as in the divorce petition being HMP No. 2268 of 2017, under the provisions of section 13 of the said Act, filed by the present petitioner, the respondent - wife has filed an application for interim maintenance under section 24 as well as under sections 25 and 26 of the said Act for interim maintenance and permanent alimony stating therein that due to mall is shutdown, she has no means of income and she is at home only and accordingly, it is submitted that the respondent – wife has suppressed the material fact and hence, the petitioner, by way of application exhs. 47 and 48, had prayed for to issue witness summons to the Human Resource person or any concerned person from Mayflower Hospital, Ahmedabad to examine him with service related documents of the respondent herein as well as to call for the material witness, respectively, to prove his case