Petitioner - Wife of respondent is before this Court under

Article 227 of the Constitution of India praying to set aside the

order dated 25.11.2017 in Crl.Misc.No.146/2014 on the file of

the V Additional Family Court, Bangalore, whereby the

application of the petitioner under Section 311 of Cr.P.C to

recall R.W.1 for further cross-examination is rejected.

2.

Heard the learned counsel for petitioner - Sri. V. C.

Raju. Though notice is served, respondent remained absent.

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3.

Learned counsel for the petitioner submits that

petitioner filed petition under Section 125 of Cr.P.C. claiming

maintenance from respondent - husband. It is stated that the

respondent is an Electrical Contractor and earns a sum of

Rs.1,50,000/- per month. Learned counsel submits that the

respondent - husband is not paying maintenance to the wife

nor to the child. When the matter was posted for cross-

examination of R.W.1, as the petitioner failed to cross-

examine R.W.1, R.W.1 was discharged. It is stated that

immediately thereafter on 20.11.2017 petitioner filed an

application under Section 311 of Cr.P.C. to recall R.W.1 for

cross-examination. The application was posted on 25.11.2017

for filing of objections by the respondent - husband. On

25.11.2017, a submission was made on behalf of respondent -

husband that he has no objection to allow the application if he

cross-examines on the same day. As the learned counsel for

the petitioner was not ready for cross-examination, the

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application came to be dismissed under the impugned order

dated 25.11.2017.

4.

Learned counsel for petitioner submits that the

petitioner - wife be given an opportunity to cross-examine the

respondent - husband and if an opportunity is given, within

two hearing dates, petitioner would complete the cross-

examination of R.W.1 respondent - husband. It is submitted

that the date on which impugned order was passed, the

learned counsel for the petitioner was not ready for cross-

examination since the stage of the case was for filing

objections by respondent - husband.

5.

Petitioner - wife filed application under Section 125

of Cr.P.C. praying for maintenance to her as well as to the

child against the respondent. When the matter was listed for

cross-examination of respondent - husband, as the petitioner

failed to cross-examine respondent, R.W.1 respondent -

husband was discharged. On 20.11.2017, an application was

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filed under Section 311 of Cr.P.C. to recall R.W.1 and to

permit cross-examination. The learned counsel for respondent

- husband submitted that the application may be allowed if the

petitioner cross-examines respondent on that date itself. As

the counsel for petitioner was not ready to cross-examine the

respondent on the said date since the stage was to file

objections to application, application came to be rejected. The

application of the petitioner filed under Section 311 of Cr.P.C.

is not considered on merits. Only on the ground that the

petitioner was not able to cross-examine on the said date, the

application is rejected. Principle of natural justice requires

providing an opportunity. In the facts and circumstance, Court

could have allowed the application and fixed a date for cross-

examination with a condition that failing to cross-examine on

that day, she would forfeit her right to cross-examine.

6.

In the peculiar facts and circumstances of the case,

I deem it appropriate to provide an opportunity to the

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petitioner - Wife to cross-examine R.W.1 respondent -

husband.

7.

Hence, the following:

ORDER

(i)

Order dated 25.11.2017 in Crl.Misc.No.146/2014

on the file of the V Additional Family Court, Bangalore, is

set aside.

(ii)

Application filed under Section 311 of Cr.P.C. by the

petitioner - wife is allowed.

(iii) Petitioner - wife is permitted to cross-examine

R.W.1 respondent - husband, if he is present on the next

date of hearing on 15.06.2022 or on subsequent dates

without praying for any unnecessary time.

With the above observations, writ petition stands

disposed of.

Sd/-