Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Neena Bansal Krishna, JJ.
Reema Salkan – Appellant
Versus
Sumer Singh Salkan – Respondent
MAT.APP.(F.C.) 186 of 2023 & CM APPL.32828-31 of 2023
Decided On : 03-07-2023
Cross-examination - Family Court - HMA Case No.1490/2018 - [Hindu Marriage Act, 1955, Section 13, Section 24, Section 125, Cr.P.C.] - The court discussed the appellant's right to cross-examine the respondent, the impact of Covid-19 guidelines on court proceedings, and the expeditious disposal of the divorce petition. The court directed the Family Court to permit the appellant to cross-examine the respondent for a limited duration and set aside the imposed cost.
Fact of the Case:
The appellant sought to set aside orders passed by the Family Court, which restricted her right to cross-examine the respondent and imposed a conditional cost. The appellant's inability to attend court due to illness and the impact of Covid-19 guidelines were highlighted.
Finding of the Court:
The court found that the Family Court's closure of the appellant's right to cross-examine the respondent was unjust, considering the circumstances of the appellant's absence and the prevailing Covid-19 guidelines. The court directed the Family Court to permit limited cross-examination and set aside the imposed cost.
Issues: The issues revolved around the appellant's right to cross-examine the respondent, the impact of her absence, and the imposition of conditional cost by the Family Court.
Ratio Decidendi: The court held that the appellant's right to cross-examine should not have been closed by the Family Court, considering the circumstances of her absence and the prevailing Covid-19 guidelines. The court emphasized the need for a balanced approach in expeditiously disposing of the case while ensuring fairness to the parties.
Final Decision: The court directed the Family Court to permit the appellant to cross-examine the respondent for a limited duration, set aside the imposed cost, and disposed of the appeal and pending applications accordingly.
JUDGMENT (Oral)
1. The present appeal has been preferred by the appellant seeking setting aside of orders dated 04.08.2022, 20.12.2022 and 11.01.2023 passed by learned Judge, Family Court, North, Rohini, Delhi, in HMA Case No.1490/2018 titled as "Sumer Singh Salkan Vs. Reema Salkan", and to restore her right to cross-examine respondent/PW-1 without conditional cost of Rs.10,000/- in view of order dated 10.01.2022 passed by the Hon'ble Supreme Court in Miscellaneous Application No.21/2022 in Miscellaneous Application No.665/2021 in suo moto Writ Petition (C) No.3/2020 titled in Re: Cognizance for Extension of Limitation.
2. Notice issued.
3. Mr. Anindya Malhotra, learned counsel appearing on behalf of respondent accepts notice.
4. The appellant (respondent before the Trial Court) has averred that vide first impugned order dated 04.08.2022, learned Family Court restored her right to continue cross-examination of the respondent (petitioner/PW-1) subject to payment of cost of Rs.10,000/- by compensating the respondent therein on account of delay of 18 months in filing restoration application for cross-examination on 11.11.2021. The appellant's right to cross-examine respondent's (petitioner before the Trial Court) witnesses was closed as the appellant could not attend the Court on 25.02.2020.
5. The second impugned order dated 20.12.2022 passed by the learned Family Court has been challenged whereby appellant's application dated 09.09.2022 seeking recall of first impugned order dated 04.08.2022 to the limited extent of payment of cost was dismissed.
6. On 11.01.2023 when the matter came up for hearing before the learned Family Court, the appellant submitted that she was unable to comply with order for payment of cost and sought its waiver. The Family Court keeping aside the issue of payment of cost, provided yet another opportunity to the appellant to cross-examine the respondent. However, since appellant sought another adjournment on account of unavailability of her counsel, the learned Family Court once again closed right to continue cross-examination of respondent's witnesses.
7. During the course of hearing, appellant submitted that the respondent herein had filed the first divorce petition in Canada to circumvent the Hindu Marriage Act and obtained ex pate 'divorce judgment' under Canadian law on 26.04.2004, which was declared null and void by the Family Court, Rohini, Delhi vide order dated 23.08.2018. Also, pursuant to directions passed by the Hon'ble Supreme Court vide order dated 25.09.2018 in an appeal preferred by the appellant herein, she was granted interim maintenance @Rs.25,000/- p.m. w.e.f. 14.10.2004, however, the said direction was not complied with by the respondent. The appellant submitted that contempt petition being CONT (C) No. 89 of 2019, petition under Section 125 Cr.P.C. and divorce petition are pending against the respondent. She submitted that on 23.10.2019 and 27.01.2020, the appellant could not attend the court due to typhoid and on the next date 06.02.2020, when appellant sought a pass-over, the Court directed the appellant herself to cross-examine the respondent's witness. The order dated 06.02.2020 notes that she submits that she herself is a practicing advocate and would herself conduct her matter and has not engaged any advocate".
8. Appellant has submitted that she could not attend the Court on the dates fixed due to her ill health and even her advocate's mother was suffering from cancer, who eventually passed away, and the learned Family Court in the light of order dated 19.07.2020 passed by the Hon'ble Supreme Court for expeditious disposal of the case, has rendered the impugned order, which is too harsh and deserves to be set aside.
9. On the other hand, learned counsel on behalf of respondent submits that the appellant's intention is to linger on the case to harass the respondent by misusing the judicial process; the order passed by the learned Family Court is just and proper and ca
The main legal point established is that the right to cross-examine should be balanced with the circumstances of the party's absence and the prevailing legal framework, such as Covid-19 guidelines, t....
Cross examination of witness – Cross-examination of witness is meant to be opportunity to concerned party to rebut evidence given by witness – Same ought to be concluded within reasonable time limit ....
The court emphasizes the need for time limits in proceedings and holds that cross-examination in matrimonial matters cannot continue endlessly.
The court highlighted the need for a delicate balance between expeditious disposal and fair opportunity in matrimonial disputes, considering the reasons for delay and the impact of external factors.
Balancing the petitioner's right to cross-examine with the delay caused and compensating the respondent.
The court affirmed the essential right to cross-examine witnesses fully, emphasizing no counsel should be compelled to conclude cross-examination in one sitting without justified reasons.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
