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Ashutosh Mishra   28 April 2024

CrPc 125 Case. PW-1 not appearing for Cross?

It is a CrPc 125 Case for maintenance. Petitioner-Wife as PW-1 filed evidence affidavit. But not appearing for Cross-Examination. Respondent is appearing on every date. Family Court is giving adjournment after adjournment. 10 such adjournments have been given. Counsel for Petitioner is appearing but PW-1 is not appearing. No Interim Maintenance Application has been filed or awarded.

1. Can FC dismiss the case for default.

2. Can FC take coercive steps to secure attendance of PW-1 by imposing fine, issuing BW or NBW.

3. Can FC expunge evidence of PW-1 and proceed with evidence of Respondent.

4. What is the right course for Family Court to adopt in this scenario?


Learning

 13 Replies

Dr. J C Vashista (Advocate )     28 April 2024

Yes, the Court can dismiss the case provided your lawyer is vigilant and pressing for it 

T. Kalaiselvan, Advocate (Advocate)     28 April 2024

The family court can at its discretion, dismiss the case for the peritioner not showing interest to prosecute the case further. 

The court can dismiss the case for default for non appearance despite having given sufficient chances to the petitioner.

Ashutosh Mishra   28 April 2024

Actually, I am pressing for dismissal for default but Family Court is saying once evidence has commenced it cannot be dismissed. Family Court saying either you close your Cross-Examination and lead your evidence or you wait for the Witness.

Can Family Court issue Bailable/Non-Bailable Warrant on my application?

T. Kalaiselvan, Advocate (Advocate)     28 April 2024

If the court is inclined to close the prosecution evidence then you can proceed with defense evidence hence you can indicate your willingness for that. 

These are all routine and practical issues,  you should confide in your advocate on all such issues. 

Dr. J C Vashista (Advocate )     29 April 2024

You can move to High Court with all such order sheets and seek a writ of mandamus, if the Family Court is granting unnecessary adjounrments and delaying proceeding.

Real Soul.... (LEGAL)     29 April 2024

If the applicant is not appearing the case should be dissmissed irrespective of the stage of case.

Ashutosh Mishra   29 April 2024

Kindly throw enlighten whether BW or NBW be issued to PW-1 on Application of Respondent?

P. Venu (Advocate)     29 April 2024

Your best option is in approaching the High Court under Article seeking appropriate directions to the High Court.

T. Kalaiselvan, Advocate (Advocate)     01 May 2024

If the petitioner is not appearing before the court and is continuously not available for cross examination then the court can close its evidence and direct the respondent to proceed with his side evidence.

If the petitioner is not apperaring before court neither being represented by the counsel, then court may issue a notice to the petitioner , if the petitioner is not appearing before court even after that then the court may dismiss the case for non prosecution or showing any interest to prosecute the case.

No BW or NBW can be issued neither an applicaiton from respondent will be entertained by court from the respondent in this regard

Dr. J C Vashista (Advocate )     02 May 2024

The family court can and shall not (NOT) issue bailable or non-bailable warrants against a witness.

P. Venu (Advocate)     02 May 2024

What is the Case No.? Which (Family) Court?

Ashutosh Mishra   18 June 2024

Dr. Vashista. I didn't understand. Do you mean Family Court can issue BW/NBW but it doesn't want to.

Dr. J C Vashista (Advocate )     19 June 2024

Dear Mishra ji,

Family Court shall not (NOT) issue any bailable or non-bailable warrants of arrest against the petitioner to depose as PW-1, 

The Court may dismiss the petition for non-prosecution or adjourn for some time, as it may feel justified but to a limit. 

 


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