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2019 Supreme(P&H) 906
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
HARI PAL VERMA, J.
Sanjeev Malhotra - Appellant
Versus
Kushargra Malhotra (Minor) Through His Mother Aaradhna Malhotra - Respondent
Criminal Miscellaneous (M) No. 29719 of 2017, 29732 of 2017
Decided On : 13-08-2019
Advocate Appeared:
Sheenu Sura, Adv., Sanjeev Manrai, Adv., Ajay Singh Parmar, Adv.
The court emphasized the need to balance the use of legal provisions such as Section 311 Cr.PC with the potential for harassment and misuse.
Headnote:
Section 125 Cr.PC - Maintenance - Section 311 Cr.P.C
Fact of the Case:
The petitioner filed petitions under Section 482 Cr.P.C. seeking to call for records and quash orders related to a maintenance petition filed by the respondent under Section 125 Cr.PC. The petitioner sought to recall a witness for further cross-examination and to determine the true income and financial status of the respondent and the minor son.
Finding of the Court:
The court found that the petitioner's repeated applications to recall the witness and seek amendments were an attempt to shift the burden of proof and harass the respondent. The court dismissed the petitions, stating that the contradictions in the evidence would be considered at the time of final adjudication.
Issues: The issues revolved around the petitioner's attempts to recall a witness for further cross-examination and to determine the true income and financial status of the respondent and the minor son.
Ratio Decidendi: The court emphasized that the provisions of Section 311 Cr.PC are liberal but should not be used to harass the opposing party. It also highlighted that the minute details of the matrimonial dispute need not be gone into in a maintenance proceeding.
Final Decision: The court dismissed the petitions, stating that the contradictions in the evidence would be considered at the time of final adjudication.
JUDGMENT :
HARI PAL VERMA, J.
1. This order shall dispose of the aforementioned two petitions as the same have been filed under Section 482 Cr.P.C. by petitioner Dr. Sanjeev Malhotra against his minor son Kushargra Malhotra.
2. In CRM-M-29719 of 2017, the petitioner has prayed to call for the records of the petition filed by the respondent under Section 125 Cr.P.C. bearing No.Mnt-125/13/2014 dated 10.09.2009 titled as Kushargra Malhotra Versus Dr. Sanjeev Malhotra pending before the Court of learned Judicial Magistrate 1st Class, Kalka, District Panchkula as well as for quashing of the order dated 15.07.2017 passed by learned Magistrate, whereby the application dated 26.04.2016 filed by the petitioner under Section 311 Cr.P.C. for recalling of AW1 Dr. Aaradhna Malhotra for further cross-examination has been dismissed.
3. Similarly, in another petition i.e. CRM-M-29732 of 2017, the petitioner has prayed to call for the records of the aforesaid petition under Section 125 Cr.PC filed by the respondent as well as for quashing of the order dated 31.05.2017 passed by learned Magistrate, whereby the application dated 26.04.2016 filed by the petitioner seeking permission to amend the application dated 26.04.2016 under Section 311 Cr.P.C. and the application dated 20.08.2016 seeking addition/amendment in the application dated 26.04.2016, were dismissed by learned Magistrate.
4. However, for convenience and clarity, detailed order is being passed in CRM-M-29719 of 2017.
5. Briefly stated, respondent Kushargra Malhotra, claiming himself as minor son of the petitioner, has filed a petition under Section 125 Cr.PC for grant of maintenance through his mother Dr. Aaradhna Malohotra, who is wife of the petitioner.
6. During the pendency of the aforesaid petition seeking maintenance, the petitioner had filed an application under Section 311 Cr.P.C. for recalling of AW1 Dr. Aaradhna Malhotra for further cross-examination and to produce the details of her income, assets and liabilities on affidavits. In the main petition for maintenance filed by the minor, the petitioner has also raised the issue of biological parentage and that request for determination of biological parentage of the minor son by DNA test already stands rejected. The petitioner sought to elicit new evidence in order to discover true income and financial status of AW1 Dr. Aaradhna Malhotra and the minor son by cross-examining her again.
7. Learned counsel for the petitioner has submitted that AW1 Dr. Aaradhna Malhotra, being in special knowledge of her and minor's income and financial status was required to disclose the same in this matter truthfully, but instead thereof, she has concealed the same by giving false evidence. The petitioner wants to cross-examine AW1 again to falsify medical record produced by her and the new evidence sought to be elicited on medical aspect is essential for just decision of the case, because the biological parentage of minor is in dispute. There is complete contradiction, inconsistencies, obscurities, evasive replies and ambiguities in the statement of AW1 and she has concealed the vital facts which needs to be clarified. She needs to be cross-examined for her statement of having and maintaining two different residences. The record submitted by AW1 on 12.11.2010 is forged. Alterations in the said record are visible to the naked eyes. While month and year of last menstrual period (LMP) are clear, day has been made illegible to conceal date of conception. Similarly, expected date of delivery is blank which is very unusual. It could not be blank, once LMP has been recorded on the card. In this manner, she has concealed the date of conception. Similarly, menstrual history has been tampered to make it look like 7/11/2 - 21/2, done to justify tempering of medical records.
8. Learned counsel for the petitioner has further argued that the AW1 Dr. Aaradhna Malhotra, who filed the petition under Section 125 Cr.P.C. on behalf of minor Kushargra Malhotra, is a Haryana
