M SRIPRIYA Vs. P V KAMAKSHIDSAN

JUDGEMENT

(1.) THE petitioner herein lodged a complaint under the provisions of the Protection of Women From Domestic Violence Act 2005 as against her husband and ultimately trial was taken up in C.C.No,3457 of 2005 by the XXIII Metropolitan Magistrate Court, Saidapet, Chennai. THE petitioner and the only respondent, namely, the husband of the petitioner have been examined in chief and cross and the case was posted for arguments and at that stage, two petitions were filed, one under section 311 Cr.P.C., and another under section 91 Cr.P.C. to recall the witnesses and to mark certain documents. THE respondent/husband objected to the same on the ground that the purpose behind filing of those petitions was to prolong the proceedings and by the orders impugned, the plea of the petitioner came to be dismissed and, aggrieved thereby, the present petitions have been filed before this court.

(2.) THE learned counsel for the petitioner/complainant points out that the petitioner is mother of two children, aged about 14 and 9 respectively and they are in her custody and that the proceedings have been initiated by her on 14.3.2008. He submits that the respondent produced the pay slips issued by his employer upto July 2009 and disputing the same, the petitioner has produced Form 16 issued by the employer to substantiate her claim regarding actual income derived during 2006-07 and to establish the fact that subsequently the respondent/husband drew more salary during 2007-08 and 2008-09. Initially, Form 16 could not be produced by the petitioner because there was refusal by the husband therefore, production of the same through the employer had become necessary. THE respondent produced a letter alleged to have been written by the father of the petitioner to substantiate the good conduct of the respondent. Under such circumstances, the petitioner wanted to produce certain diary notings of her father to disprove the claim of the husband. THE learned Magistrate, without properly considering the plea for recalling of witnesses and marking of certain relevant documents, erroneously passed the orders impugned. According to the learned counsel, unless those documents are allowed to be marked and the respondent is recalled for cross examination, great prejudice will be caused and the same may not be rectified at a later stage.

(3.) LEARNED counsel for the respondent relied on a case reported in 2008(1) SCC 474 (Hamida v. Rashid @ Rasheed and others) wherein, it has been held as follows: