SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

A vs T on 28 May, 2018

$~55-FM
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 28th May, 2018

+ CM(M) 307/2018 and CM No.9853/2018 (stay)

A …… Petitioner
Through: Mr.Mayank Khurana, Advocate

versus

T …..Respondent
Through: Mr.Nitin Kalra, Advocate for
Respondent along with respondent in
person

CORAM:
HON’BLE MR. JUSTICE J.R. MIDHA

JUDGMENT (ORAL)

1. The petitioner has challenged the order dated 6 th February, 2018
whereby the learned Family Court closed the petitioner’s right to file the
written statement.

2. The record of the Family Court has been perused. The respondent
instituted the petition for dissolution of marriage on the ground of cruelty in
which the notice was issued to the petitioner on 5 th July, 2017. The
respondent, on receipt of the summons, approached the Supreme Court for
transfer of the divorce petition to Ambala in which the Supreme Court
issued the notice to the respondent and stayed further proceedings in the

CM(M) 307/2018 Page 1 of 5
divorce petition. The matter was, therefore, kept pending for awaiting the
outcome of the transfer petition. However, the transfer petition was
dismissed on 1st December, 2017 and the interim stay was vacated. On 3rd
January, 2018 the Family Court directed the petitioner to file the written
statement within fortnight and the case was fixed for 6 th February, 2018. On
6th February, 2018, the petitioner sought further time to file the written
statement which was declined and the learned Family Court closed the right
to file the written statement and framed the issues. The case was thereafter
taken up on 22nd February, 2018, 15th March, 2018, 28th March, 2018, 4th
April, 2018, 18th April, 2018, 5th May, 2018 and 9th May, 2018 for
counselling.

3. This Court is of the view that the impugned order dated 6th February,
2018 passed by the Family Court in closing the right to file the written
statement appears to be passed in undue haste. It is matter of record that the
proceedings before the Family Court remained stayed by the Supreme Court
upto 1st December, 2017 when the transfer petition was dismissed. The
matter came up thereafter on 3rd January, 2018 when the Family Court
granted just two weeks time and on 6 th February, 2018, the Family Court
rushed to close the right to file the written statement. After closing the right
to file the written statement, the case is just pending for counseling. If case
listed for counseling/settlement, this Court is unable to comprehend what
was the haste in closing the valuable right to file the written statement. In
Telefonaktiebolaget L.M Ericsson v. Lava International Limited, (2016)
226 DLT 342, this Court held that if parties are negotiating settlement during
the pendency of a matter, then the Court will condone the delay in filing of
written statement due to such settlement talks. The relevant portion of the

CM(M) 307/2018 Page 2 of 5
said judgement is reproduced herein under:

“22. Even otherwise, it is a well settled principle of law that if
parties are negotiating settlement during the pendency of a
matter, then the Court will condone the delay in filing of written
statement due to such settlement talks. This Court, in its
decision in Dr. Sukhdev Singh Gambhir v. Amrit Pal Singh, ILR
(2003) I Delhi 577, inter alia held that:

“5. Having heard, counsel for the parties and
taking into consideration the respective pleas
urged before me, I am of the view that this is a
case where the delay in filing of the written
statement deserves to be condoned. Firstly it is a
suit for partition concerning family members
where every endeavor should be made for
amicable settlement. Even otherwise, the mandate
under Section 89 effort ought to be made to settle
the matter. Secondly, the defendant had already
filed the written statement in the suit in District
Court. Hence it could not be the situation that the
defendant was delaying the case, but on account of
the attempts at settlement written statement was
not filed””

(Emphasis Supplied)

4. Learned counsel for the petitioner submits that the petitioner’s written
statement is ready. He further submits that the advance copy of the written
statement shall be handed over to the counsel for the respondent today itself.

Learned counsel for the petitioner submits that the petitioner shall not seek
any unnecessary adjournment in this matter.

5. The petition is allowed and impugned order dated 6th February, 2018
is set aside. The Family Court shall take the written statement on record on
the date fixed. Pending application is disposed of.

6. The record of the Family Court be returned back forthwith through a

CM(M) 307/2018 Page 3 of 5
special messenger.

Post Script

7. This Court is of the view that it is the duty of the Courts to search the
truth and then do justice; this is the very object for which Courts are created.
The Courts have to remove chaff from the grain to separate falsehood from
truth. The matrimonial litigation begins with parties mounting claims on
each other, which are often exaggerated and are magnified to such an extent
that the truth and falsehood become so inextricably mixed up, that it is
difficult, if not impossible, to separate them.

8. It becomes even more difficult to find the truth if the right to file the
written statement or the right to lead evidence or right of cross-examination
of any witness is closed in undue haste. Therefore, in matrimonial
litigations, the Family Courts should take due care and caution in closing the
valuable right to file the written statement or to lead the evidence or the right
of cross-examination of any witness.

9. In Gajanan Laxman Bhalchandra v. Rangrao Amrutrao
Deshpande, 1980 Mah LJ 821, the Division Bench of the Bombay High
Court observed as under:-

“The very weapon of cross-examination would stand
scuttled. Cross-examination is not a mere continuation of
examination-in-chief nor is it in all cases and circumstances
supposed to fall within the routine strait-jacket formula as of
examination in chief. Indeed, to the contrary. It is a very
effective instrument and a powerful searchlight to draw out the
truth and further the cause of justice. Its object inter alia is to
impeach the very credit of the concerned witness and shake his
entire testimony.”

(Emphasis Supplied)

10. In Nandram Khemraj v. State of Madhya Pradesh, 1995 Cri.L.J.

CM(M) 307/2018 Page 4 of 5

1270, the Madhya Pradesh High Court noted that weapon of cross-
examination is a powerful weapon by which the defence can separate truth
from falsehood piercing through the evidence given by the witness, who has
been examined in examination-in-chief. The relevant portion of the said
judgement is reproduced herein under:

“It is to be noted at this juncture that weapon of cross-
examination is a powerful weapon by which the defence can
separate truth from falsehood piercing through the evidence
given by the witness, who has been examined in examination-
in-chief. By the process of cross-examination the defence can
test the evidence of a witness on anvil of truth. If an opportunity
is not given to the accused to separate the truth from the
evidence given by the witness in examination-in-chief, it would
be as good as cutting his hands, legs and mouth and making
him to stand meekly before the barrage of statements made by
the witnesses in examination-in-chief against him for sending
him to jail. Law does not allow such thing to happen.”

(Emphasis Supplied)

11. Copy of this judgment be sent to the Family Court along with the
record.

12. Copy of this judgment Registrar General of this Court who shall send
the same to the all Family Courts and other Courts dealing with matrimonial
cases.

13. Copy of this judgment be given dasti to learned counsels for the
parties under signature of Court Master.

MAY 28, 2018 J.R.MIDHA, J.
dk

CM(M) 307/2018 Page 5 of 5

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation