Delhi High Court
Nirmal Joshi vs Mathura Dutt Joshi on 17 April, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 244/2012
% Date of Decision: 17.04.2012
NIRMAL JOSHI ..... Petitioner
Through: Ms Deepali Gupta, Advocate
- versus-
MATHURA DUTT JOSHI ..... Respondent
Through: Mr B.R. Bakshi, Advocate
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J. (ORAL)
*
1. The counsel for appellant has challenged the impugned order dated
02.02.2012 by contending that the learned trial court at Tis Hazari dealing
with the aforesaid case has no territorial jurisdiction to deal with the
matter. It is contended that the respondent/husband ought to have filed
the divorce petition at Dwarka Courts. After some arguments learned
counsel submits that she is not pressing the aforesaid contention before
this court and prays that liberty be given to take appropriate remedy in
accordance with law. In view of above submissions made, the aforesaid
contention is dismissed as having not been pressed. However,
petitioner/wife will be at liberty to file appropriate proceedings at
appropriate forum in accordance with law.
2. The next ground on which the impugned order is challenged is that
the right of the petitioner/wife to cross-examine the respondent/husband
has been closed by the learned trial court. The learned counsel for the
appellant/wife has submitted that the divorce petition was filed in the year
2011. The issues were framed on 02.01.2012 and the first date of
evidence of respondent/husband before the ld. trial court was
02.02.2012. It is submitted that on that day, the petitioner/wife had to
cross-examine the respondent/husband. However, her counsel who was
from the Legal Aid was not well, as such request was made to the court
for adjourning the matter. But the learned trial court declined the request
and discharged PW-1 and listed the matter for remaining PE on
02.03.2012. It is submitted that great prejudice has been caused to the
petitioner/wife, inasmuch as the petitioner/wife is precluded from her
valuable right of cross-examining the respondent/husband, as such, she
will not be able to substantiate her defence.
3. On the other hand, the learned counsel for the respondent has
contended that keeping in view the facts and circumstances of the case,
petitioner/wife is not entitled for any opportunity to corss-examine the
respondent/husband.
4. It may be noticed that vide impugned order opportunity to cross-
examine the respondent/husband is closed. The same has serious
consequences on the petitioner/wife as the evidence of
respondent/husband will go un rebutted as right to cross-examine has
been declined which is the valuable right of petitioner/wife. It is stated
that petitioner/wife had been provided counsel from Legal Aid.
Petitioner/wife should not be allowed to suffer due to lapse on the part of
counsel. Ld.Counsel for the petitioner has apologized in respect of
observations made by the ld.trial court about the conduct of
petitioner/wife as well as her counsel.
5. In the interest of justice, the impugned order dated 02.02.2012 by
which right of the petitioner/wife to cross examine the
respondent/husband has been closed, is set aside.
6. It is informed that the matter is coming up for hearing on
27.04.2012 and is fixed for the evidence of the petitioner/wife. On that
date, the respondent/husband will present himself before the court and
the petitioner/wife will be given opportunity to cross examine him. If the
petitioner does not cross-examine the respondent, she will not be given
any further opportunity. After recording the said evidence, the ld.trial
court shall give another date to petitioner/wife for her evidence.
The appeal stands disposed of accordingly.
CM 3706/2012 (stay)
In view of above order, no further orders are required on this
application. The same stands disposed of accordingly.
VEENA BIRBAL, J
APRIL 17, 2012
srb
