:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 938 OF 2008 Mrs. Ajmeri Begum @ Asfia Kaunain @ Astia Arshad Khan .. Petitioner Vs. Mr.Arshad Shafeeq Khan .. Respondent Mr. V.A. Shastry for petitioner. Mr. Rajesh More for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : June 02, 2008. Date : June 02, 2008. Date : June 02, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Shastry the learned counsel for the petitioner-wife. 2. Rule. Mr. More the learned counsel waives service for the respondent. 3. By consent of the parties, the petition is taken up for final hearing forthwith and more so because the petitioner has impugned an interlocutory order passed by the Family Court at Pune. 4. The parties were married on 30/4/2000 at Warangal in Andhra Pradesh. It is the case of the :2: respondent-husband that on or about 9/9/2006 the wife left the matrimonial home and went to reside with her parents at Warangal permanently. He, therefore, approached the Family Court in P.A. No.1015 of 2006 for restitution of conjugal rights. During the trial of the said petition, he filed his affidavit by way of examination-in-chief on 6/8/2007. On 14/8/2007 the wife was called upon to cross examine the respondent-husband on the affidavit filed by him by way of examination-in-chief. However, the wife as well as the learned Advocate representing her remained absent on 14/8/2007 and, therefore, the Family Court was pleased to pass the order, "The cross of the petitioner is deemed to be completed". On the subsequent two dates i.e. on 1/9/07 and 14/9/07 again adjournment applications were filed on behalf of the wife on the ground that she was seriously ill and the Advocate representing her could not obtain instructions. On 1/10/07 the learned Advocate representing the wife filed an application at Exh.23 and prayed for leave to cross examine the husband, by setting aside the earlier order dated 14/8/2007. This application at Exh.23 came to be rejected by the :3: impugned order dated 1/10/2007. 5. On 14/8/2007 the Family Court passed the following order:- "Respondent absent. Her counsel is also absent when called at second seating. No application for adjournment is filed. So Petitioner is permitted to go. Cross of Petitioner is deemed to be completed." . The reasoning set out in the order dated 1/10/2007 in rejecting the prayer to set aside the earlier order dated 14/8/2007 is not supported by and, in fact, is contrary to the record. In the said order the learned Judge has observed that since 14/8/2007 or 6/8/2007 no steps were taken by the respondent-wife for taking necessary instructions to cross examine the witness. Unless the order dated 14/8/2007 was set aside, there was no scope for the learned Advocate representing the wife to proceed with the cross examination of the husband. As noted earlier, the affidavit by way of examination-in-chief was filed on :4: 6/8/2007 and the learned Advocate representing wife was to cross examine the husband on 14/8/2007, but he remained absent and the court proceeded to pass the order observing that the cross examination was deemed to be completed. This approach of the Family Court is not only harsh but in deed hyper-techincal. If the learned Advocate representing the wife was absent on a given date even in both the sessions, the petition could have been adjourned for the next day or any date convenient to the court for the cross examination and when the application for restoration was submitted, the Family Court failed to reconsider its own order. The application for restoration could have been allowed by imposing some costs and by taking an undertaking from the learned Advocate representing the wife to complete the cross examination on the given date. Even as per the case of the husband, the wife is residing with her parents at Warangal in Andhra Pradesh and on these obtaining facts, the approach of the Family Court in rejecting the application for setting aside the order dated 14/8/2007 is unsustainable. Interest of justice demands that the wife is given a reasonable opportunity to cross :5: examine the husband on his affidavit filed by way of examination-in-chief. While dealing with the matrimonial cases it is necessary that the approach of the court is lenient and reasonable opportunities are provided to both the parties and this does not mean that the parties who are causing inordinate delays are required to be protected or their request for adjournments are to be allowed. In the facts of the present case, undoubtedly, the Family Court fell in gross errors in declining to set aside the order dated 14/8/2007. 6. Hence, this petition succeeds. The impugned order is hereby quashed and set aside. The order dated 14/8/2007 is set aside and to that extend the application at Exh.23 stands allowed. The parties shall appear before the trial court on the next date i.e. 6/6/2008 for fixing the date to complete the cross examination of the husband and on the given date the petitioner-wife shall complete the cross examination of the husband. The petitioner-wife to deposit an amount of Rs.500/- with the Family Court within two weeks from today by way of costs. :6: 7. Rule is made absolute accordingly. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)