Raja Azlan Shah J:

This case raises the singularly important question as to whether a person other than the deponent to an affidavit can be cross-examined. Order 38 r. 1 provides that "a Judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit." The matter arose in this way.

The respondent who was the former wife of the applicant successfully obtained a divorce from him. Both are Catholics. The respondent was granted custody of their child. The applicant was given access to visit her. The respondent later married one Mr. C Nadarajah, a Hindu. The applicant applied by way of summons in chambers to vary the order of custody; he now wants to have custody of the said child. One of the grounds in support of that application was the re-marriage of the respondent to a Hindu. Paragraph 13 of his affidavit states.-

By the petitioner subsequently marrying a Hindu or a non-Catholic she is now outside the Roman Catholic Church and is no more capable of looking into the said child's religious and moral upbringing.

The respondent filed an affidavit in answer, para. 7 of which reads as follows:

As to para. 13 although I am married to a Hindu I continue to practise my religion, Catholicism, without any interference from my husband. I attend Church on Sundays and other religious days with the said child regularly. The said child is now attending Assunta Convent (Primary) School, Petaling Jaya

which is a Catholic School. A letter to this effect from the Assistant Priest of St Francis Xavier's Church, Petaling Jaya is annexed hereto and marked 'BCN. 1'."

Exhibit "BCN. 1" states as follows:

St Francis Xavier's Jalan Gasing, Petaling Jaya, Selangor.

TO WHOM IT MAY CONCERN:

Mrs. Bessie Carol Nadarajah is still capable of taking care of her child's religious and moral upbringing. The child. Angeline Carol Gomez, is now registered for admittance to a Catholic School in January 1969. The child is brought to religious services of the Catholic Faith and Mr. C Nadarajah places no obstacle either to his wife's practice of her religion or to the child being educated in the Catholic faith.

(Sd) J Wood SJ

Assistant Priest,

St Francis Xavier's Church.

The applicant filed an affidavit in reply, para. 7 of which is relevant:

With regard to para. 7 petitioner in the eyes of the Roman Catholic Church by divorcing her husband and marrying a Hindu is living in sin and cannot practise the religion while continuing to live in daily sin. The petitioner is not a practising Catholic in that she cannot receive Holy Communion nor the Sacraments nor can she receive the last rites. With regard to the child attending a Catholic school I wish to respectfully point out that Muslims and Buddhists also attend Catholic schools. I have been born a Catholic and am a practising Catholic in that I attend Church on Sundays and receive the Sacraments.

The applicant now applies for leave to cross- examine the respondent and the said Rev Father J Wood. The application for variation of the order of custody is still pending.

There can be no doubt that a party cannot be denied the right to cross-examine the opposite party upon his affidavit. That is a sound rule of practice and O. 38 r. 1 was primarily designed in that direction. Mr. Naidu, for the respondent, concedes that the Court may order cross-examination of a person who has made an affidavit but argues that there is no provision with regard to any application to cross-examine a person other than the deponent. He says that only in special circumstances can such a person be cross-examined. He cites the case of Leiserach v. Schalit [1934] 2 KB 353 in which arbitrators were allowed to give evidence on a motion to set aside an award where the Court could not ascertain the essential facts from the affidavits. Mr. Nathan for the applicant also relies on that case. It is therefore necessary to examine it in some detail.

The parties there came t