A party cannot introduce evidence on matters not pleaded, and the High Court will not interfere unless there is grave dereliction of duty or flagrant abuse of power.

ORDER :

Kalyan Rai Surana, J.

1. Heard Mr. A. Bhuyan, learned counsel for the petitioner and Mr. P.K. Roychoudhury, learned counsel for the respondent.

2. By this application filed under section 115 read with section 151 CPC and Article 227 of the Constitution of India, the petitioner has assailed the order dated 09.06.2023, 06.07.2023 and 20.06.2023, passed by the learned Principal Judge, Family Court-I, Kamrup (M), Guwahati in F.C.(G) Case No. 101/2018.

3. It may be mentioned that the learned counsel for the respondent had that an affidavit-in- opposition had been filed. However, the same is not tagged with the record. Nonetheless, the learned counsel for the respondent had submitted that the reference to the stand taken in the affidavit- in-opposition has been referred to in the affidavit-in-reply filed by the petitioner, which is available in the record and he has expressed that the matter be heard on whatever material is available on record. Accordingly, with the consent of the learned counsel for both the parties, the matter has been heard.

4. At the outset it may be mentioned that in this order, the names of the parties and their minor son is not disclosed. Similarly, the name of a particular school, whose Principal is sought to be examined by the petitioner as witness is also not disclosed in this order. Those names are not disclosed to mask the identity of the said persons.

Facts leading to this application:

5. The petitioner, who is the estranged wife of the respondent, has instituted proceedings under section 7 of the Guardians and Wards Act, 1890, with a prayer to give the minor son of the parties to the petitioner. The said case was registered as F.C.(G) Case No. 101/2018.

6. The respondent had contested the said case by filing written statement and counter-claim, with prayer to give custody of their minor son aged 7 years to the respondent, cost, etc. The petitioner had contested the counter-claim of the respondent by filing written statement.

7. In course of trial of the guardianship case, the petitioner had examined herself as PW-1. The name of one other person was cited as PW-2. However, by filing petition no. 905/23 dated 03.06.2023, the petitioner had averred that the PW-2 could not adduce evidence in the case and therefore, a prayer was made to allow her to examine her younger brother as PW-3. The said prayer made in petition no. 905/2023 was allowed vide order dated 03.06.2023. From the order dated 09.06.2023, which is annexed to this petition, it appears that the PW-3 was examined, cross-examined and discharged.

8. On 09.06.2023, the learned counsel for the petitioner had submitted that petition no. 905/23 dated 03.06.2023 was pending. However, the learned Trial Court had observed in the order dated 09.06.2023 that the said had been disposed of. However, in respect of statement made in para-3 of the said petition no. 905/23, the learned Trial Court had held to the effect that upon perusal of the materials on record, there was no averment that the respondent was maintaining illicit relationship with another lady, named therein, and moreover, as the prayer was confined to accept the evidence of PW-3. It was also held that two prayers in single stamped petition cannot be entertained. Accordingly, the learned Trial Court had expressed its view that the prayer for directing the Principal of a particular school named therein to prove the record as PW-4 has been rejected. Thus, as two PWs had been examined and discharged, and considering that the respondent had declined to give evidence, the case was fixed for hearing argument on 23.06.2023.

9. Thereafter, on 23.06.2023, the petitioner had filed two petitions, as follows:-

a. By filing petition no. 1020/23 under the provisions of Order XVI, Rule 3 CPC, the petitioner had prayed to allow for calling of the Principal of the particular school as unlisted witness.

b. By filing petition no. 1024/23, prayer was made by the petitioner to transfer the said guardianship proceeding to