The High Court of Jammu & Kashmir and Ladakh has issued a nuanced ruling in a matrimonial dispute, partially allowing an application to recall a petitioner for cross-examination and to admit additional evidence concerning his alleged prior marriage. In a judgment delivered by Justice Sanjay Dhar, the court delineated the boundary between the inherent power of the judiciary to prevent a miscarriage of justice and the procedural constraints governing the recall of witnesses during an active trial.

The litigation originated from a divorce petition filed by the petitioner under Section 13 of the Hindu Marriage Act, seeking the dissolution of his marriage on grounds including desertion and cruelty. As the matter reached the stage of final arguments before the Family Court in Jammu, the respondent moved an application under Order XVIII Rule 17 and Section 151 of the Code of Civil Procedure (CPC). She sought to recall the petitioner and three of his witnesses for further cross-examination, while also requesting the court’s permission to examine two new witnesses—Raman Kumar and Priya Rani.

The respondent contended that she had only recently discovered that the petitioner had entered into a prior wedlock with one Laxmi Devi, with whom he allegedly shares a daughter, Priya Rani. She claimed that this information became known to her during a chance encounter with the petitioner’s son-in-law, Raman Kumar. The trial court initially granted the application in its entirety, prompting the petitioner to challenge the order before the High Court on the grounds that the evidence was unnecessary and that the imposition of costs against him was legally unsustainable.

Managing Procedural Fairness in Matrimonial Disputes

The High Court’s intervention focused on the specific parameters of Order XVIII Rule 17 of the CPC. Justice Dhar observed that this provision is primarily designed to enable a court to clarify doubts arising from testimony already recorded, rather than to allow parties to fill lacunae or omissions in their evidence. Referencing established Supreme Court precedents, including the landmark Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate , the High Court emphasized that the power to recall a witness must be exercised with restraint.

“The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases,” the court noted, clarifying that the procedure is not a license for parties to re-litigate testimony or to introduce evidence that could have been produced earlier through diligent efforts. However, the court distinguished this from the broader, inherent powers vested in the judiciary under Section 151 of the CPC.

While the court acknowledged that Section 151 cannot be used to bypass express provisions of the law, it held that in cases where the interests of justice are paramount, it allows for the reopening of evidence when a party uncovers significant material that was previously inaccessible. The court found that evidence regarding a prior marriage—if established—would fundamentally alter the context of the respondent’s alleged desertion and provide a potential defense against the petitioner’s claims of cruelty.

Limits on Judicial Discretion and Inherent Powers

The High Court scrutinized the trial court’s decision to recall the petitioner’s witnesses, namely Prem Nath and Sansar Chand. Upon reviewing the record, Justice Dhar found that these individuals had already testified that they were unaware of any second marriage, making their recall a redundant and potentially burdensome exercise. Consequently, the direction to recall these specific witnesses was set aside as unsustainable in law.

Regarding the petitioner’s objection to the introduction of the new witnesses, Raman Kumar and Priya Rani, the High Court took a different view. It noted that the respondent had provided documents, including an Aadhaar card and marriage records, which prima facie suggested a link between the petitioner and the child from his alleged prior marriage. The court concluded that it was necessary to test these claims through the examination of the witnesses and the recall of the petitioner himself.

Justice Dhar remarked on the necessity of exercising such judicial powers with caution, stating, “The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.”

The High Court also addressed the trial court’s imposition of ₹10,000 in costs on the petitioner for alleged concealment of information. The court found this penalty premature, reasoning that the existence of the prior marriage had not yet been proven. Until the respondent successfully produces the requested evidence and the court records a factual finding, it would be inappropriate to penalize the petitioner for non-disclosure.

Accordingly, the petition was partly allowed. The High Court upheld the order to the extent that it permits the respondent to examine Raman Kumar and Priya Rani as witnesses and mandates the recall of the petitioner for further examination. The directives to recall the other witnesses and the imposition of the monetary penalty were vacated. The trial court is now expected to proceed with the examination of the new evidence, balancing the need for a just determination with the procedural rigors mandated by the Code of Civil Procedure. This ruling clarifies that while courts maintain the discretion to admit crucial evidence late in a trial, such discretion is strictly bounded by the necessity of the evidence and the principles of procedural fairness.