Delhi High Court
Jitender Mohan vs Anjali Mohan on 27 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 838/2012 with CM 12698-12700/2012
Date of Decision: 27.07.2012
JITENDER MOHAN ...... Petitioners
Through: Mr. Anand K. Mishra, Adv.
Versus
ANJALI MOHAN ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution assails order
dated 14.05.2012 whereby an application under Section 45 of Indian
Evidence Act, filed by the petitioner, was dismissed.
2. The petitioner had filed a divorce petition under section 13(1) (ia)
of Hindu Marriage Act being H.M.A. No. 304/2008 against his wife (the
respondent), which is pending in the Court of Additional District Judge
(ADJ). In the said petition, an application was filed by the petitioner
under section 45 of Indian Evidence Act with the following prayers:
"(a) to constitute a panel of medical expert(s)
having requisite expertise in the particular
field of medicine who can give expert opinion
to the medical condition of the respondent
certifying as to whether she is capable of
smelling anything or not;
(b) to direct RW-1, i.e. respondent herself, to
appear before a medical board or medical
expert as constituted/ appointed by the court
for medical examination and to submit herself
and to cooperate for the required tests as may
be prescribed by the medical board/panel so
constituted by the court; and
(c) to pass such further order(s) in the interest
of justice and in favour of the petitioner as
this court may deem proper in the facts of the
case."
3. The application came to be dismissed by the learned ADJ
observing that the court cannot help the parties to litigation to collect
their evidence. This order is assailed on the ground that the respondent,
who is the wife of the petitioner, in her statement had stated that when
she entered into the kitchen and lighten the gas, it suddenly caught fire
and further that she found the door of the kitchen locked from outside
and she was not able to smell anything. Referring to this part of her
statement, the petitioner had prayed for examination of his wife (the
respondent), by a Medical Board.
4. The petitioner seems to be making mileage referring to a part of
cross examination of his wife. The provisions contained under section
45 of Indian Evidence Act cannot be invoked for contradicting a part of
the testimony of any witness. The testimony of the respondent was to
be read as a whole and not in isolation and its evidentiary value
ultimately would be weighed by the court at appropriate stage. The
learned ADJ rightly relied upon the case of Padam Sen and another
vs. Sate of UP, AIR 1961 SC 218 that it was not the business of the
Court to collect evidence on behalf of the parties to the litigation.
5. The case pending before the trial court is at the stage of final
arguments and the application having not maintainable, was rightly
dismissed by the learned ADJ.
6. I do not see any reason to interfere with the impugned order as it
does not have any illegality or infirmity. The petition has no merit and
is hereby dismissed.
M.L. MEHTA, J.
JULY 27, 2012
awanish
