Bombay High Court
SONALI ASHOK SAWAIversusSAINATH TATERAO PAWAR
- Decided
- Disposal
- Disposed Off
Holding
The High Court quashed the Family Court's order and allowed the petitioner to cross‑examine the respondent and lead her evidence, subject to payment of costs.
Summary
The petitioner, a mother residing in the USA, challenged a Family Court order that denied her the right to cross‑examine the respondent and to lead evidence in a custody proceeding. The Family Court had rejected her application to set aside the "no cross‑examination" order, finding her non‑diligent and that the application was filed only after a video‑conference direction. The petitioner argued that natural justice required an opportunity to cross‑examine and that she would not seek any adjournments. The High Court examined the lower court's reasoning and held that the petitioner must be given a chance to cross‑examine and present evidence, notwithstanding her earlier absence. Accordingly, the High Court quashed the Family Court's order, permitted cross‑examination and evidence, imposed a cost of Rs.25,000 on the petitioner, and directed the proceedings to be concluded within a year.
Issues considered
- Whether the Family Court's order rejecting the petitioner's application to set aside the "no cross‑examination" order is liable to be quashed.
- Whether the petitioner is entitled to be allowed cross‑examination and to lead her evidence in the custody proceeding.
- Whether principles of natural justice require the court to provide an opportunity for cross‑examination despite the petitioner's earlier non‑appearance.
Subjects
- family law
- custody
- cross‑examination
- natural justice
- writ petition
- High Court
- procedural fairness
Judgment
8-WP-4729-2026 (C).doc
Tikam
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4729 OF 2026
VAISHALI Sonali Ashok Sawai ...Petitioner/s
ANIL
TIKAM VERSUS
Sainath Taterao Pawar ...Respondent/s
Digitally signed
by VAISHALI
ANIL TIKAM _________________________________________________________________
Date: 2026.09.09
10:59:07 +0530
Mr.Dushyant Purekar, a/w. Mr. Rajat Dedhia a/w. Miss Esther Mary
Mathew, Advocates for Petitioner.
Mr. Manoj Agiwal, Advocate for Respondent.
_________________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
DATE : 2nd SEPTEMBER, 2026.
P.C. :
1. Heard learned counsel for the Petitioner and learned counsel for
Respondent.
2. The challenge in this Petition is to the order dated
02/03/2026 passed by the Family Court, Bandra whereby the Learned
Judge has rejected the Petitioner's application to set aside the "no cross
examination" order dated 20/08/2021 and reopen the evidence.
3. It is contention of learned counsel for the Petitioner that the
Petitioner stays in USA and she undertakes to go on with the matter
without seeking any adjournment. If she fails to continue with the
proceedings pending before the Family Court, the Family Court may pass
appropriate orders against the Applicant, but an opportunity should be
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given to the Petitioner to cross examine the Respondent and lead her
evidence and requested to allow the Petition.
4. It is contention of learned counsel for the Respondent that
sufficient opportunities were given to the Petitioner. The Petitioner was
aware about "no cross-examination" order passed against her. In spite of
that, she did not choose to file any application for setting aside the "no
cross-examination" order. It was only when the Learned Family Judge
directed to interview with the child, then only the application was filed
for setting aside the "no cross-examination" order and for permission to
lead evidence. The said application was filed after thought and only to
prolong the matter. Learned counsel further submitted that the Learned
Family Judge has passed well-reasoned order, no interference is required
in it and requested to dismiss the Petition.
5. I have heard both leaned counsel. Perused the impugned
order. While passing the order, the Learned Family Judge has observed
that Petitioner chose to file the application only after she was directed to
produce the minor child through video conference, thereafter she filed
the application. Hence, Petitioner was not diligent and intentionally
remained absent from the proceedings, in spite of the fact that the
proceeding was well within her knowledge. On that ground, the Learned
Family Judge has rejected the application. In my view, the Respondent has
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filed custody petition of the minor child, who is presently with the
Petitioner. The Petitioner is the mother of the child, whereas, Respondent
is father of the child. A "no cross-examination" order is passed against the
Petitioner and her evidence is closed. However, as a matter of principle of
natural justice, an opportunity should be given to the Petitioner to cross
examine the Respondent. The Petitioner has undertaken that she will not
seek any adjournment and she will proceed with the proceedings.
Considering this fact, I pass following order:
ORDER
(i) Writ Petition is allowed.
(ii) The impugned Order dated 02/03/2026 passed below Exh. 64
by the learned Family Court, Bandra, Mumbai in Petition No.
D-91 of 2026 is quashed and set aside.
(iii) The Petitioner is permitted to cross examine the Respondent
subject to payment of cost of Rs.25,000/- to the Respondent.
(iv) The Petitioner shall complete the cross examination of the
Respondent in two sessions, the dates be given as per the
convenience of the Family Court.
(v) The Petitioner shall appear before the Family Court physically,
if her physical presence is required by the Family Court.
Otherwise, she may appear through video conference, but in her
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absence, her advocate shall continue with the proceedings, and
the proceedings shall not be delayed on account of the
Petitioner's absence.
(v) The Petitioner is permitted to lead her evidence.
(vi) The Family Court is requested to decide all the proceedings as
early as possible, preferably within one year from the date of
receipt of this order.
Writ Petition is disposed of in the aforesaid terms.
(SHIVKUMAR DIGE, J.)
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