CM(M) 1404/2023

$~52

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision:29.08.2023

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CM(M) 1404/2023 & CM APPL. 44495/2023

PANKAJ JAIN

..... Petitioner

Through:

Mr.Prashant

Mendiratta,

Mr.Rishabh

Bansal,

Ms.Himanshi

Malhotra,

Ms.Somyashree,

Mr.Sanchit

Saini & Ms.Tanya Bhutani,

Advs. along with petitioner in

person.

versus

PARUL JAIN

..... Respondent

Through:

Mr.Ramakant

Sharma,

Mr.Prateek Avasthi, Ms.Sajal

Arora & Ms.Purva Dua, Advs.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

1.

This petition has been filed by the petitioner praying for

the following relief:-

“a.

Jain;”

2.

The learned counsel for the petitioner, drawing the

attention of this Court to the cross-examination of the

respondent herein recorded by the learned Judge, Family Court-

02, West District, Tis Hazari Court, Delhi (hereinafter referred

Digitally Signed By:SUNIL

Signing Date:31.08.2023

19:17:31

Signature Not Verified

CM(M) 1404/2023

to as the ‘Family Court’) on 03.08.2023 in GP No. 54/2018

titled Pankaj Jain v. Parul Jain, submits that learned Family

Court has erred in refusing to allow the petitioner herein to

confront the respondent with the video recording of the visit of

the learned Court Counsellor appointed by the learned Family

Court on 25.03.2023 to take the custody of the child from the

petitioner. He submits that the petitioner had also sought to

confront the respondent with the audio recording of the visit of

the learned Local Commissioner on 08.05.2023, however, the

same was also disallowed by the learned Family Court.

3.

The learned counsel for the petitioner, placing reliance on

the order dated 31.05.2022 of this Court passed in CRL.M.C.

340/2022 titled Dushyant Kumar v. Central Bureau of

Investigation, submits that in view of the earlier judgment of

the Supreme Court in Bipin Shantilal Panchal v. State of

Gujarat, (2001) 3 SCC 1, this Court has opined that even if the

Court finds that any question put by the party to the other is

inadmissible or not relevant, the Court should record its

observation, and thereafter permit the witness to answer the

question. The issue whether the evidence is to be included or

excluded from consideration while pronouncing the final

verdict, is to be taken at the end and not at the time of the

examination of the witness. He submits that in the present case

as well, the learned Family Court should have allowed the

petitioner to confront the respondent with the video and the

audio recording, and the question whether the same are

Digitally Signed By:SUNIL

Signing Date:31.08.2023

19:17:31

Signature Not Verified

CM(M) 1404/2023

admissible or relevant should have been postponed for

consideration at the stage of the final adjudication.

4.

On the other hand, the learned counsel for the respondent,

who appears on advance notice, submits that the video and the

audio recording made by the petitioner was in total defiance of

the order dated 09.12.2022 of the learned Family Court, which

prohibits either party and their relatives to make any audio or

video recording of the visitation of the child for proceedings in

the Guardianship Petition or for any other purposes. He submits

that as far as the visit of the learned Court Counsellor to the

premises of the petitioner on 23.05.2023 is concerned, the

objections of the petitioner against the report of the learned

Court Counsellor already stand rejected by the learned Family

Court vide its order dated 05.07.2023. The said order was

challenged by the petitioner before a Division Bench of this

Court in form of MAT.APP.(F.C.) 194/2023, titled Pankaj Jain

v. Parul Jain. The same also stands dismissed by this Court

vide its judgment dated 10.07.2023. He submits that the issue is

now pending adjudication before the Supreme Court in form of

Special Leave Petition filed by the petitioner herein, being

SLP(C) no. 14915