Chattisgarh High Court
Shani Garhewal vs Smt. Pratima Garhewal on 8 April, 2025
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2025:CGHC:16569
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 757 of 2022
Shani Garhewal S/o Soupat Lal, Aged About 32 Years R/o. Village Mohra,
Tahsil Seepat, District Bilaspur Chhattisgarh, At Present Resident Of Atal
Awas Bahtarai, Tahsil And District Bilaspur Chhattisgarh. .
... Petitioner
versus
1 - Smt. Pratima Garhewal W/o Shri Shani Garhewal, Aged About 25 Years
R/o Village Masturi, District Bilaspur, Chhattisgarh.
2 - Ku. Anchanl, D/o Shani Garhewal, Aged About 6 Years Minor Through
Legal Guardian Mother Smt. Pratima Garhewal Wife Of Shani Garhewal,
Caste Suryavanshi, R/o Village Masturi, District Bilaspur Chhattisgarh.
3 - Veera Garhewal, S/o Shani Garhewal, Aged About 4 Years Minor
Through Legal Guardian Mother Smt. Pratima Garhewal Wife Of Shani
Garhewal, Caste Suryavanshi, R/o Village Masturi, District Bilaspur
Chhattisgarh.
4 - Vinay Garhewal, S/o Shani Garhewal, Aged About 2 Years Minor
Through Legal Guardian Mother Smt. Pratima Garhewal Wife Of Shani
Garhewal, Caste Suryavanshi, R/o Village Masturi, District Bilaspur
Chhattisgarh.
... Respondents
VEDPRAKASH
DEWANGAN (Cause title taken from Case Information System)
Digitally signed by
VEDPRAKASH
DEWANGAN
Date: 2025.04.11
19:17:54 +0530
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For Petitioner : Mr. Prakash Tiwari, Advocate along with
Mr. Anmol Singh, Advocate
For Respondents : Mr. Abhishek Choubey, Advocate on behalf
of Mr. Pushkar Sinha, Advocate
Hon’ble Shri Justice Ravindra Kumar Agrawal
Order on Board
08/04/2025
1. The challenge in the present petition is the order dated 30.05.2022,
passed by learned Principal Judge, Family Court, Bilaspur, in MJC
No. 86 of 2021, whereby the amount of Rs. 3400/- has been granted
in favour of the present respondents as monthly maintenance
amount which is payable from the date of order.
2. Learned counsel for the petitioner would submit that an application
for grant of maintenance under Section 125 of CRPC was filed by the
present respondents before the learned Family Court on 04.01.2021.
He filed a reply of the application and vide order dated 26.03.2022,
an amount of Rs. 3400/- was granted in favour of the present
respondents as interim maintenance. During the proceeding of the
said application of Section 125 of CRPC before the learned Family
Court, on 27.05.2022, when the matter was fixed for recording
evidence of the applicants’ witnesses, the respondent (i.e. present
petitioner) shown his inability to pay the amount of interim
maintenance and on that day the present petitioner was precluded
from taking part in the further proceeding of the case and stopped
him from cross-examining the applicants’ witnesses and after hearing
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the parties on 30.05.2022, the impugned order of maintenance has
been passed against him. He would further submit that earlier he was
paying the interim maintenance regularly and only on 27.05.2022, he
was unable to pay the amount of maintenance and for single default
he was precluded from taking part from the proceeding of the case.
Therefore, the impugned order may be set aside and the matter may
be remitted back to the learned Family Court for giving an opportunity
of cross-examining the witnesses of the applicants and to pass order
afresh.
3. On the other hand, the learned counsel for respondents opposes and
has submitted that since the present petitioner/husband has not paid
the amount of interim maintenance, the learned Family Court has
proceeded against him and rightly passed the impugned order, which
needs no interference.
4. I have heard learned counsel for the parties and perused the
documents annexed with the petition.
5. From perusal of the order sheet dated 27.05.2022, it reflects that on
that day the case was fixed for recording evidence of the applicants
and their witnesses were also present, but it is the petitioner who
sought time to cross-examine the witnesses and also shown his
inability to pay the interim maintenance amount and on that day it is
observed by the learned trial Court that “vukosnd u rks vUrfje Hkj.k iks”k.k
jkf’k ns jgk gS vkSj u gh nsus dh dksbZ bPNk gS] blfy;s vukosnd dks bl izdj.k esa vkxs
dk;Zokgh ls jksdk tkrk gS] vkosfndk lk{kh izfrek x<+soky vkSj Jhefr iq”ik ukxs’oj dk ‘kiFk
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i= igys ls is’k gS vukosnd dks izfrijh{k.k djus ds fy, volj nsus ls badkj fd;k tkrk gSA
rdZ lquk x;kA” and thereafter the case was fixed for passing of the
order on 30.05.2022 and ultimately on 30.05.2022, the order has
been passed granting maintenance to the present respondents.
6. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and
Others, (2013) 4 SCC 465, the Hon’ble Supreme Court has held in
paras- 24 to 30 as under:-
“Cross-examination is one part of the principles of natural
justice
24. A Constitution Bench of this Court in State of M.P.
v. Chintaman Sadashiva Walshampayan, AIR 1961 SC
1623 held that the rules of natural justice require that
a party must be given the opportunity to adduce all
relevant evidence upon which he relies, and further
that, the evidence of the opposite party should be
taken in his presence, and that he should be given the
opportunity of cross-examining the witnesses
examined by that party. Not providing the said
opportunity to cross-examine witnesses, would
violate the principles of natural justice. (See also
Union of India v. T.R. Varma, AIR 1957 SC 882,
Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719,
Kesoram Cotton Mills Ltd. v. Gangadhar, AIR 1964 SC
708, New India Assurance Co. Ltd. v. Nusli Neville
Wadia, (2008) 3 SCC 279, Rachpal Singh v. Gurmit
Kaur, (2009) 15 SCC 88, Biecco Lawrie Ltd. v. State of
W.B., (2009) 10 SCC 32 and State of U.P. v. Saroj
Kumar Sinha, (2010) 2 SCC 772.)
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25. In Lakshman Exports Ltd. v. CCE, (2005) 10 SCC
634, this Court, while dealing with a case under the
Central Excise Act, 1944, considered a similar issue
i.e. permission with respect to the cross-examination
of a witness. In the said case, the assessee had
specifically asked to be allowed to cross-examine the
representatives of the firms concerned, to establish
that the goods in question had been accounted for in
their books of accounts, and that excise duty had
been paid. The Court held that such a request could
not be turned down, as the denial of the right to cross-
examine, would amount to a denial of the right to be
heard i.e. audi alteram partem.
26. In New India Assurance Co. Ltd. v. Nusli Neville
Wadia, (2008) 3 SCC 279, this Court considered a case
under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and held as follows: (SCC p.
295, para 45)
“45. If some facts are to be proved by the
landlord, indisputably the occupant should get
an opportunity to cross-examine. The witness
who intends to prove the said fact has the right
to cross-examine the witness. This may not be
provided by under the statute, but it being a part
of the principles of natural justice should be held
to be indefeasible right.”
(emphasis added)
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In view of the above, we are of the considered opinion
that the right of cross- examination is an integral part
of the principles of natural justice.
27.In K.L. Tripathi v. SBI, (1984) 1 SCC 43, this Court
held that, in order to sustain a complaint of the
violation of the principles of natural justice on the
ground of absence of opportunity of cross-
examination, it must be established that some
prejudice has been caused to the appellant by the
procedure followed. A party, who does not want to
controvert the veracity of the evidence on record, or
of the testimony gathered behind his back, cannot
expect to succeed in any subsequent grievance
raised by him, stating that no opportunity of cross-
examination was provided to him, specially when the
same was not requested, and there was no dispute
regarding the veracity of the statement. (See also
Union of India v. P.K. Roy, AIR 1968 SC 850 and
Channabasappa Basappa Happali v. State of Mysore,
(1971) 1 SCC 1.) In Transmission Corpn. of A.P. Ltd. v.
Sri Rama Krishna Rice Mill, (2006) 3 SCC 74, this
Court held: (SCC p. 80, para 9)
“9. In order to establish that the cross-
examination is necessary, the consumer has to
make out a case for the same. Merely stating
that the statement of an officer is being utilised
for the purpose of adjudication would not be
sufficient in all cases. If an application is made
requesting for grant of an opportunity to cross-
examine any official, the same has to be
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considered by the adjudicating authority who
shall have to either grant the request or pass a
reasoned order if he chooses to reject the
application. In that event an adjudication being
concluded, it shall be certainly open to the
consumer to establish before the appellate
authority as to how he has been prejudiced by
the refusal to grant an opportunity to cross-
examine any official.”
28. The meaning of providing a reasonable
opportunity to show cause against an action
proposed to be taken by the Government, is that the
government servant is afforded a reasonable
opportunity to defend himself against the charges, on
the basis of which an inquiry is held. The government
servant should be given an opportunity to deny his
guilt and establish his innocence. He can do so only
when he is told what the charges against him are. He
can, therefore, do so by cross-examining the
witnesses produced against him. The object of
supplying statements is that, the government servant
will be able to refer to the previous statements of the
witnesses proposed to be examined against him.
Unless the said statements are provided to the
government servant, he will not be able to conduct an
effective and useful cross-examination.
29. In Rajiv Arora v. Union of India, (2008) 15 SCC 306
this Court held: (SCC p. 310, paras 13-14)
“13. … Effective cross-examination could have
been done as regards the correctness or
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otherwise of the report, if the contents of them
were proved. The principles analogous to the
provisions of the Evidence Act as also the
principles of natural justice demand that the
maker of the report should be examined, save
and except in cases where the facts are admitted
or the witnesses are not available for cross-
examination or similar situation.
14. The High Court in its impugned judgment
proceeded to consider the issue on a technical
plea, namely, no prejudice has been caused to
the appellant by such non- examination. If the
basic principles of law have not been complied
with or there has been a gross violation of the
principles of natural justice, the High Court
should have exercised its jurisdiction of judicial
review.”
30. The aforesaid discussion makes it evident that,
not only should the opportunity of cross-examination
be made available, but it should be one of effective
cross-examination, so as to meet the requirement of
the principles of natural justice. In the absence of
such an opportunity, it cannot be held that the matter
has been decided in accordance with law, as cross
examination is an integral part and parcel of the
principles of natural justice.”
7. The right to cross-examination of the witnesses is a valuable right of
the party, which cannot be taken away by saying that the petitioner is
not paying the interim maintenance amount. There is other procedure
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prescribed for recovery of the interim maintenance amount through
the execution proceeding or the application under Section 125(3) of
the CRPC. Depriving from cross-examining the witnesses appears to
be erroneous, which does affect the valuable right of the petitioner.
Therefore, this Court is of the view that one opportunity to cross-
examine the witnesses of the applicants (respondents herein) should
be provided to the petitioner to do complete justice in the case.
8. In the result, the revision succeeds, the impugned order dated
30.05.2022, passed by learned Family Court, in MJC No. 86 of 2021
is set aside. The matter is remitted back to learned Family Court,
Bilaspur for decision afresh after providing an opportunity to cross-
examine the applicants’ witnesses.
9. The learned Family Court shall fix a date for cross-examining the
applicants’ witnesses. The present petitioner shall not take any
adjournment when the applicants’ witnesses appeared for their
cross-examination.
10. The learned Family Court is also directed to conclude the proceeding
and to pass a fresh order within 03 months from the date of receipt of
the copy of this order.
11. With this observation, the present criminal revision is allowed.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved