IMPORTANT POINT
The welfare of the child is paramount in guardianship cases, and while Counsellors' reports are crucial, they cannot be subjected to cross-examination as expert witnesses.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. The present Petition has been filed under Article 227 of the Constitution of India against the impugned Order dated 19.08.2023 whereby the Application filed by the Petitioner under Order 18 Rule 17 read with Section 151 CPC for leading fresh evidence and cross-examination of Respondent-Ritu Taneja, has been dismissed by the learned Judge, Family Court, New Delhi.

2. The second Petition has been filed under Article 227 of the Constitution of India whereby the Application of the Petitioner under Section 151 of CPC for grant of physical access of the minor daughter to her grandmother has been dismissed by the impugned order dated 19.08.2023 passed by the learned Judge, Family Court, New Delhi.

3. Briefly stated, Guardianship Petition G-48/2012, Vineet Taneja vs. Ritu Taneja was filed by the Petitioner-Vineet Tanja/father seeking visitation rights in respect of the daughter of the parties. The final Order was made on 05.04.2023 whereby visitation rights were granted to Petitioner-father to meet the minor child on 1st and 3rd Saturday of every month in the Children Room, Family Court, Saket from 3:00 PM to 5:00 PM under observation of the Counsellor, besides on birthday of the child for two hours from 3:00 PM till 5:00 PM, under similar supervision.

4. The Respondent/mother challenged the Final Order in LPA 603/2022 whereby the Division Bench after meeting the child, by Order dated 03.02.2023 directed the Experts/Counsellors appointed by the Court, to determine the aspect of interim visitation. The Counsellors interacted with the minor child and submitted their Report recording that child had been shown the pornographic material by the father of the child during the visitation period. The Final Report was submitted by the Counsellors on 25.03.2023.

5. The Order dated 03.02.2023 was challenged by the Petitioner in SLP (Civil) 3667/2023, which was dismissed on 28.03.20023.

6. The Division Bench of this Court set aside the Final judgment dated 05.04.2023 and remanded back the matter to the Family Court and gave liberty to the Petitioner/father to file objections to the Report of the Experts/Counsellors and substantiate his stand in accordance with the law, which included the right to cross-examine the Respondent-mother.

7. Consequently, an Application under Order XVIII Rule 17 read with Section 151 CPC was filed by the Petitioner seeking cross-examination of the two Counsellors as witnesses and also further cross-examination of the Respondent–mother. However, the said Application was dismissed by the learned Family Court by Order dated 19.08.2023.

8. The reasoning given by the Family Court to dismiss the Application was the Counsellors were not appointed on the asking of the mother nor were their names proposed by her. Thus, seeking cross-examination of the Counsellors is not tenable and amounts to ignoring the principles of fair trial. The Counsellors were appointed by the Division Bench of this Court on its own, to examine the child in view of the serious nature of the allegations, which means there is no need to cross-examine the Counsellors on their report, as the Petitioner is not impugning the appointment of the Counsellors but the findings returned by them.

9. The petitioner has challenged this Order by asserting that his Application has been dismissed on technical grounds without considering the welfare of the child. According to Petitioner, grave procedural error has been committed by taking away his substantive right to cross-examine the witness, thus compromising the fair adjudication of the Guardianship Petition.

10. It is, therefore, submitted that his Application be allowed and he may be permitted to adduce further evidence and cross-examine the Counsellors in terms of the Order of the Division Bench dated 19.05.2023.

11. The Respondent- mother has filed a detailed Reply wherein it is asserted that this Petition is nothing but an abuse of the process of law. In the garb of the present petition,