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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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