Anilkumar Mahadev Chaware vs Smt. Sunita W/O Ghanshyam Daware, Alias Smt. Sunita W/O Anilkumar Chaware

2026:BHC-NAG:6814
2904WP6603-25.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6603 OF 2025
Anilkumar Mahadev Chaware, Aged 56 years, Occ: Service,
R/o Flat no.C/6, NIT Gharkul Parisar, Venkatesh Nagar,
Nandanwan, Nagpur – 440024. PETITIONER

VERSUS
Sunita Ghanshyam Daware, Alias Sunit Anilkumar Chaware,
Maiden name – Sunita Sukhdevrao Gavai, Aged 41 years,
Occ: Household, R/o Nagesh Tailor Galli, Sanjay Gandhi
Nagar no.2 (Rajapeth), Amravati - 444606. RESPONDENT
______________________________________________________________
Shri G.C. Khond, counsel for the petitioner.
Smt. M.P. Khsirsagar, counsel for the respondent.
---------------------------------------------------------------------------------------------------------------
CORAM : PRAFULLA S. KHUBALKAR, J.

DATE ON WHICH ARGUMENTS WERE HEARD : MARCH 10 , 202 6
DATE ON WHICH JUDGMENT IS PRONOUNCED : APRIL 29 , 202 6
JUDGMENT
Heard. RULE.
2. By this petition, the petitioner has challenged an order dated
14.10.2025 passed by the Family Court Nagpur, by which an application
(Exhibit 73) filed by the respondent under Order XVIII Rule 17 of Code of

Procedure, 1908 (for short, ‘the Code’) for permission to reopen the evidence
and to examine additional witness, is allowed at the stage of judgment of
the petition seeking nullity of marriage.
3. The husband/petitioner herein has filed a petition under Sections
11 and 12 of the Hindu Marriage Act, 1955 (for short, ‘the Act’) for decree
of divorce by nullity of marriage, bearing petition no. A-102/2018. The
petition is contested by the wife who has filed her written statement and
examined witnesses in support of her case. After the evidence of both the
parties was over, they advanced final arguments and the petition was

2904WP6603-25.odt 2 Judgment
listed for judgment on 18.09.2025. However, it was adjourned on four
occasions and on 08.10.2025, the respondent-Wife filed an application
under Order XVIII Rule 17 and Section 151 of the Code, at Exhibit 73, for
grant of permission to reopen evidence of the respondent for examining
an additional witness, viz. the President of Triratna Buddha Var Vadhu
Suchak Mandal Amravati. The petitioner-Husband filed reply to this
application on 13.10.2025 and by order dated 14.10.2025, the Family
Court allowed the application subject to costs of Rs.1000/-. This order is
subjected to challenge by way of instant petition.
4. While assailing the impugned order, Shri Gaurav Khond, learned
counsel for petitioner submitted that the application under Order XVIII
Rule 17 of the Code deserved to be rejected since the respondent has
attempted to reopen the evidence to examine additional witness, which is
beyond the purport of the said provision. He submitted that the petition
was listed at the stage of judgment and the application for reopening the
evidence is clearly an attempt to fill up the lacunae which is not
permissible. He further submitted that after examining herself as witness
along with two other witnesses, the respondent has voluntarily closed her
evidence and has even advanced final arguments and as such under these
circumstances, the application for reopening the evidence to examine a
new witness is an abuse of process of law. He thus submitted that the

Family Court has adopted an erroneous approach in allowing the application
under Order XVIII Rule 17 of the Code for permitting the respondent to
examine a new witness at the stage of judgment of the petition.

2904WP6603-25.odt 3 Judgment
5. Smt. Meera Kshirsagar, learned counsel for the respondent,
however opposed the petition and submitted that the Family Court has
rightly allowed the application to enable the respondent to examine the
witness to prove certain relevant facts. She submitted that since the
respondent has earlier failed to contact the witness who is now traced and
needs to be examined and therefore, the respondent needs to be granted
an opportunity to lead evidence. She submitted that the evidence of the
said witness is material for deciding the actual controversy involved in the
petition and in the interest of justice, the respondent’s application
deserved to be allowed. In support of her submission, she placed reliance
on the judgment of the Hon’ble Supreme Court in Shubhkaran Singh
Versus Abhayraj Singh & Others [S.L.P.(C) nos.12012-12013/2025] dated
05.05.2025 and the Judgment in K.K. Velusamy Versus N.Palanisamy
[(2011) 11 SCC 275] and submitted that the powers under Order XVIII
Rule 17 of the Code can be exercised by the Court at any stage of the
proceedings, including the stage of judgment of the matter. She submitted
that the respondent has made out a case under Order XVIII Rule 17 of the
Code and the impugned order warrants no interference.
6. Rival contentions thus fall for my consideration.
7. While considering the controversy involved in the instant petition, it
has to be noted that undisputedly, the petition for divorce on the ground
of nullity of marriage has reached the stage of judgment. The parties to
the petition had examined witnesses in support of their case and had

2904WP6603-25.odt 4 Judgment
voluntarily closed their evidence. After the final arguments were
advanced, the petition was listed for judgment. The petition was
adjourned for judgment on four dates and at that stage, the respondent
filed the application, at Exhibit 73, under Order XVIII Rule 17 of the Code
seeking permission to lead additional evidence. In her application, the
respondent has stated that although the evidence was led by her, she was
able to contact the additional witness only after the evidence was over.
She argued that the examination of the said witness is necessary to prove
the fact that her first marriage was dissolved and thereafter she had
performed the second marriage, which is thus valid and cannot be
considered as nullity.
8. The reasons mentioned in the application at Exhibit 73 are that the
respondent was not able to contact the said witness since due to ill health
of the said witness, he was unable to receive her call. After mentioning
the reasons in paragraph 2 of the application, the respondent has
mentioned certain circumstances to show that the evidence of said witness
by name Shri Anand Gambhir, the President of Var Vadhu Suchak Mandal
is necessary and he is a material witness.
9. It has to be noted that the divorce petition was filed in the year
2018, in which the respondent had filed her written statement in
July-2019. Although there is a reference to the document of divorce-deed
in the written statement, the respondent has not taken any steps to
examine the said witness during the course of her evidence. It is not the

2904WP6603-25.odt 5 Judgment
respondent’s case that at the stage of her evidence, she has sought for any
permission to examine the said witness after establishing contact with
him. This apart, even after voluntarily closing her evidence, the
respondent has advanced the final arguments and the matter was listed
for judgment on 18.09.2025. A perusal of the order-sheet placed on
record clearly reveals that the matter was adjourned for judgment on
several dates and the respondent has not at all filed any application,
before the matter was listed for judgment for the first time. As such, there
is nothing to show any attempt on the part of the respondent to examine
the said witness and thus, the bare statement in the application (at Exhibit
73) that the witness was not examined because the respondent was not
able to contact the said witness, cannot constitute due diligence on her
part for examining the said witness in support of her case.
10. It is crucial to note that after the final arguments were advanced by
both the parties, the petition for divorce was listed for judgment on
18.09.2025, on which day it was adjourned to 25.09.2025 for judgment
and thereafter to 04.10.2025 and lastly to 08.10.2025. On all these four
dates, the judgment was not pronounced. Thus, at the stage of judgment
of the petition, the respondent filed application (at Exhibit 73) on
08.10.2025 seeking permission to examine the additional witness in
support of her case. Thus, the issue is as to whether at the stage of
judgment, the respondent or any of the parties could file an application to
examine additional witness.

2904WP6603-25.odt 6 Judgment
11. In this regard, provision of Order XX Rules 1 to 3 of the Code, need
to be taken note of, which is reproduced below:-
“Order XX Rule 1:- Judgment when pronounced.--
(1) The Court, after the case has been heard, shall
pronounce judgment in an open Court, either at once, or
as soon thereafter as may be practicable and when the
judgment is to be pronounced on some future day, the
Court shall fix a day for that purpose, of which due notice
shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced
at once, every endeavour shall be made by the Court to
pronounce the judgment within thirty days from the date
on which the hearing of the case was concluded but,
where it is not practicable so to do on the ground of the
exceptional and extraordinary circumstances of the case,
the Court shall fix a future day for the pronouncement of
the judgment, and such day shall not ordinarily be a day
beyond sixty days from the date on which the hearing of
the case was concluded, and due notice of the day so
fixed shall be given to the parties or their pleaders.
(2) Where a written judgment is to be pronounced, it
shall be sufficient if the findings of the Court on each
issue and the final order passed in the case are read out
and it shall not be necessary for the Court to read out the
whole judgment.
(3) The judgment may be pronounced by dictation in
open Court to a shorthand writer if the Judge is specially
empowered by the High Court in this behalf:
Provided that, where the judgment is pronounced by
dictation in open Court, the transcript of the judgment so
pronounced shall, after making such correction therein as
may be necessary, be signed by the Judge, bear the date
on which it was pronounced, and form a part of the
record.”

2904WP6603-25.odt 7 Judgment
Thus, it is clear that there is no stage of the suit after closing of the
arguments and pronouncement of judgment. A bare perusal of this
provision shows that after the final arguments of the suit are over, the
matter has to be listed for judgment and it is for the Court to pronounce
the judgment on the next date or to postpone the pronouncement for
further date. As such, there is no stage of the suit or proceedings after the
final arguments are concluded and before judgment is pronounced. It has
to be noted that the parties to the litigation cannot invoke as of right any
provision to seek permission to lead additional evidence at the stage of
judgment or to make any kind of submissions after the matter is listed for
judgment.
12. In this regard, it is beneficial to refer to the authoritative
pronouncement of Three-Judge Bench of the Hon’ble Supreme Court in
the matter of Arjun Singh Versus Mohindra Kumar & Others [AIR 1964
SC 993], in which the Hon’ble Supreme Court has observed that there is
no hiatus in between two stages of reservation of judgment and
pronouncement of judgment. The pertinent observations of the Hon’ble
Supreme Court as reflected in paragraph 19 are reproduced below:-
“19. …………… In the present context when once the hearing
starts, the Code contemplates only two stages in the trial of the
suit: (1) where the hearing is adjourned or (2) where the hearing
is completed. Where the hearing is completed the parties have no
further rights or privileges in the matter and it is only for the
convenience of the Court that O. XX R. I permits, judgment to be
delivered after an interval after the hearing is completed. It
would, therefore, follow that after the stage contemplated by O.
IX, R. 7 is passed the next stage is only the passing of a decree

2904WP6603-25.odt 8 Judgment
which on the terms of O. IX R. 6 the Court is competent to pass.
And then follows the remedy of the party to have that decree set
aside by application under O. IX R. 13. There is thus no hiatus
between the two stages of reservation of judgment and
pronouncing the judgment so as to make it necessary for the
Court to afford to the party the remedy of getting orders passed
on the lines of O. IX R. 7. We are, therefore, of the opinion that
the Civil Judge was not competent to entertain the application
dated May 31, 1958 purporting to he under O. IX R. 7; and that
consequently the reasons given in the order passed would not be
res judicata to bar the hearing of the petition under O. IX R. 13
filed by the appellant.”
Albeit, these observations are made while considering the provisions of
Order IX Rule 7 of the Code but the scheme of the Code with respect to
Order XX Rule 1 has been precisely clarified. It is thus clear that a party
cannot claim a right to seek reopening of evidence at the stage of
judgment.
13. In order to delve further into the controversy, it is also necessary to
have a look at provisions of Order XVIII Rule 17 of the Code, which are
reproduced below:-
“17.The Court may at any stage of a suit recall any
witness who has been examined and may (subject to the
law of evidence for the time being in force) put such
questions to him as the Court thinks fit.”
Further, the position of law as laid down by Hon’ble Supreme Court with
respect to this provision also needs to be considered for deciding the
controversy involved in the instant petition. In support of her
submissions, the learned counsel for respondent has relied on the
judgment in Shubhkaran Singh and K.K. Velusamy (supra). These
judgments indeed deal with the provision of Order XVIII Rule 17 of the

2904WP6603-25.odt 9 Judgment
Code and has clarified the position by observing that the powers of Order
XVIII and Rule 17 of the Code are to be exercised by the Court for
removing the ambiguity, for clarifying the statement and not for the
purpose of allowing a party to fill up the lacunae.
Pertinently, highlighting the legal position, in paragraph 8 of the
judgment in Shubhkaran Singh (supra), the Hon’ble Supreme Court has
observed that under this rule, a witness cannot be recalled at the instance
of a party for the purpose of examining, cross, examining or re-examining
and the rule is not intended to serve such purpose. Even the judgment in
K.K. Velusamy (supra) has elucidated the legal position with regard to
Order XVIII Rule 17 of the Code and in paragraph 10, it has observed that
the provision is not intended to enable the parties to recall any witnesses
for further examination-in-chief or cross-examination or to place
additional material or evidence, which could not be produced when the
evidence was being recorded. It is also observed that the provision of
Order XVIII Rule 17 of the Code is primarily a provision enabling the
Court to clarify any issue or doubt. Paragraph no. 10 of the judgment in
K.K. Velusamy (supra) is reproduced below:-
“10. Order 18 Rule 17 of the Code is not a provision intended
to enable the parties to recall any witnesses for their further
examination-in-chief or cross-examination or to place additional
material or evidence which could not be produced when the
evidence was being recorded. Order 18 Rule 17 is primarily a
provision enabling the court to clarify any issue or doubt, by
recalling any witness either suo motu, or at the request of any
party, so that the court itself can put questions and elicit answers.
Once a witness is recalled for purposes of such clarification, it may,

of course, permit the parties to assist it by putting some questions.”

2904WP6603-25.odt 10 Judgment
14. As such, after considering the position of law, as laid down by the
Hon’ble Supreme Court in the above said judgments, it has to be noted
that these judgments do not lay down the position of law that any of the
parties can seek reopening of the evidence at the stage of judgment by
invoking provisions of Order XVIII Rule 17 of the Code. It is also crucial to
note that the provision of Order XVIII Rule 17 of the Code indeed enable
the Court to recall any witness who has been examined and may put such
questions to him as the Court thinks fit, pertinently it is for enabling the
Court to pronounce the judgment effectively and not for the parties to
reopen their entire evidence. In a given case, a party to the litigation can
make out a case for invoking powers of Order XVIII Rule 17 of the Code,
however, at the stage of judgment, a party cannot claim any right to
reopen the evidence to examine additional witness. In this regard, the
observations recorded at paragraph 9 of the judgment in K.K. Velusamy
(supra) needs to be noted, which are reproduced below:-
“9. Order 18 Rule 17 of the Code enables the court, at any
stage of a suit, to recall any witness who has been examined
(subject to the law of evidence for the time being in force) and
put such questions to him as it thinks fit. The power to recall any
witness under Order 18 Rule 17 can be exercised by the court
either on its own motion or on an application filed by any of the
parties to the suit requesting the court to exercise the said power.
The power is discretionary and should be used sparingly in
appropriate cases to enable the court to clarify any doubts It may
have in regard to the evidence led by the parties. The said power
is not intended to be used to fill up omissions in the evidence of a
witness who has already been examined. (Vide Vadiraj Naggappa
Vernekar v. Sharadchandra Prabhakar Gogate.)”

2904WP6603-25.odt 11 Judgment
In the case in hand, the issue is as to whether the respondent has made
out a case for invoking the powers under Order XIII Rule 17 of the Code,
at the stage of judgment.
15. While applying the legal position in the instant case, it has to be
noted that the respondent has filed the application under Order XVIII Rule
17 read with Section 151 of the Code for the purpose of examining a new
witness in support of its case. It has to be noted that the Court has not
recorded any finding that the Court wants to examine any new witness for
clearing any ambiguity, which would enable it to decide the controversy
completely and finally. Even the respondent has clearly stated in its
application that the said witness was not earlier examined. It has to be
noted that the respondent has earlier examined three witnesses in support
of her case and has voluntarily closed her evidence. As such, allowing the
respondent to examine a new witness will definitely amount to granting
her permission to introduce new case through the said witness which
would ultimately result in filling up the lacunae, and it will definitely
cause prejudice to the petitioner. The reason mentioned by the trial Court
in the impugned order about availability of an opportunity to the
petitioner to cross-examine the said witness, in my respectful opinion, is
not at all sufficient to allow the respondent to examine new witness at the
stage of judgment. Another reason mentioned in the impugned order that
the additional witness be permitted to be examined for getting clarified,
the situation and for meeting ends of justice, cannot constitute a justified
reason to allow a party to reopen evidence at the stage of judgment.

2904WP6603-25.odt 12 Judgment
Pertinently, the respondent has mentioned in the application that the said
person who was the President of the said mandal is holding the same post
as on today, and despite this, there are no sufficient reasons as to why the
said witness who is now shown to be a material witness, was not
examined earlier. As such, the reasons put forth in the application are not
sufficient to invoke the provisions of Order XVIII Rule 17 or Section 151 of
the Code of Civil Procedure, 1908 and the reasons stated in the impugned
order are not justified. Further, considering the reasons mentioned in the
application, the prayer for reopening the entire evidence cannot be
granted even by invoking Section 151 of the Code as the same would
allow the wife to reopen the entire evidence and lead fresh evidence
which opportunity was available to her during her evidence. Such a
course by invoking inherent powers, at the stage of judgment, would
cause prejudice to the other side and hence cannot be permitted.
16. After giving anxious consideration to the entire controversy
involved in the instant petition, I am of the firm opinion that the reasons
mentioned by the respondent in the application are not sufficient to
establish any due diligence for invoking powers under Order XVIII Rule 17
of the Code. Further, I am also of the considered opinion that at the stage
of judgment, a party cannot as of right file an application for reopening
the evidence and examine new witness, as it will amount to filling up the
lacunae pointed out by the opponent during the course of arguments.
Such a course will definitely cause prejudice to the other side.

2904WP6603-25.odt 13 Judgment
17. In view of the above mentioned factual and legal aspects of the
matter, I am of the considered opinion that the impugned order passed by
the Family Court is unsustainable in law and deserve to be quashed and
set decide. Hence, I pass the following order:-
I. The writ petition is allowed.
II. The order dated 14.10.2025 passed by the Family Court, Nagpur on
the application at Exhibit 73 in Petition no.A-102 of 2018 is
quashed and set aside.
III. The application filed by the respondent at Exhibit 73 in Petition
no.A-102 of 2018 is rejected.
18. Rule is made absolute in aforesaid terms with no order as to costs.
(PRAFULLA S. KHUBALKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 02/05/2026 17:03:13