Jharkhand High Court
Rashmi Kumari vs Dinesh Kumar on 21 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Appellate Jurisdiction)
FA No. 41 of 2018
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Rashmi Kumari, daughter of late Ramparwesh Sharma, wife of Dinesh
Kumar, resident of C/o Bhola Sharma @ Bholu Babu, Mohalla Khasganj,
PO+PS Sohsarai, Bihar Sharif, District Nalanda, Bihar, Pin 803118
... .... Appellant
Versus
Dinesh Kumar, son of Sri Baleshwar Prasad, resident of Qtr. No. B/26,
Sector-2, HEC Colony, PS Jagarnathpur, PO Dhurwa, District Ranchi,
Jharkhand ... .... Respondent
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Santosh Kumar Soni, Advocate
For the Respondent : Mr. Vishal Kumar Tiwary, Advocate
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ORDER
st
21 September 2022
Per, Shree Chandrashekhar,J.
The wife has challenged the judgment dated 26 th August 2017
passed in Original Suit (MTS) No. 508 of 2015.
2. The divorce suit was filed by Dinesh Kumar who is the husband
of the appellant seeking a decree of divorce by dissolution of marriage
solemnized between the parties on 17th January 2011.
3. The Principal Judge, Family Court, Ranchi has decreed the
divorce suit "on contest".
4. The first ground of challenge made by the appellant is that the
judgment in the divorce suit is an ex-parte judgment and not a contested one.
5. Mr. Santosh Kumar Soni, the learned counsel for the appellant,
submits that the appellant could not submit her written statement to contest
the divorce suit but was represented through her counsel in the trial who was,
however, not permitted to cross-examine the respondent's witnesses.
6. The plea urged on behalf of the appellant is that her presence in
the trial through her counsel cannot be construed as if she has contested the
suit on merits.
7. The original records of the divorce suit which have been called
for and are attached along with the present First Appeal would disclose that
by an order dated 22nd June 2017 the appellant was debarred from filing
written statement. It further appears that due to her failure to file written
statement in the divorce suit the appellant was debarred from leading her
defence evidence.
8. The order dated 22nd June 2017 passed by the learned Principal
Judge, Family Court reads as under:
"22.06.2017
Both parties represented through lawyer.
Heard, respondent has not complied order dated
06.05.2017 and 02.06.2017 hence respondent debarred from filing
W.S.
Put up on 7.7.17 for evidence of petitioner."
9. The appellant was not permitted to lead evidence in the divorce
suit is clear from the order dated 23 rd August 2017 passed by the learned
Principal Judge, Family Court which reads as under:
"23.08.17
Petitioner filed attendance as witness O.P. represented
through lawyer.
P.W. Dinesh Kumar examined and discharged.
On written request evidence of petitioner closed.
As O.P. debarred on 22.6.2017 hence no need of O.P.
evidence.
Put up on 25.8.17 for argument."
10. The divorce suit proceeded ex-parte against the appellant by an
order dated 22nd June 2017 and on mere presence of the learned counsel for
the appellant the position in law would not change that the proceeding in the
divorce suit remained ex-parte, as an opportunity to cross-examine the
respondent's witnesses was denied by the Family Court.
11. This is fundamental in law that right to cross-examine a witness
of the other side is a basic right springing from the principles of natural
justice. The proceedings in the divorce suit record that on each date of
hearing the learned counsel for the appellant was present but the appellant
was not even permitted to cross-examine the witnesses produced by the
respondent. The examination-in-chief of the respondent taken on affidavit
records that "opp. debarred".
12. Section 137 of the Indian Evidence Act provides that
examination of a witness by the party who calls him shall be called his
examination-in-chief. It further provides that the examination of a witness by
the adverse party shall be called his cross examination. There are other
provisions, such as, sections 145 and 155 of the Indian Evidence Act which
deal with cross-examination of a witness produced by other party.
13. Order XVIII of the Code of Civil Procedure deals with hearing
of the suit and examination of the witnesses. The provisions under Rule 10
and onwards to Order XVIII of the Code of Civil Procedure provide an
elaborate procedure how evidence of the witnesses has to be taken down
including any objection by the other party as well as cross-examination.
14. The aforesaid statutory provisions definitely give a right to a
party to cross- examine the witnesses produced by the other party. The reason
why the other party has been given a right to cross-examine the witnesses is
to elicit material facts/statements which either contradict the plaintiff's own
case or probalise the defendant's version. Obviously, such a right is given to
the other party to demonstrate before the Court that the case set up by the
other party cannot be accepted.
15. The reason why the appellant failed to submit her written
statement is not brought on record, but then, her failure to submit written
statement cannot bring about a situation where she can be debarred from even
cross-examining the witnesses produced by the other party.
16. Apparently, the appellant suffered serious prejudice during the
trial which was conducted in breach of the rules of natural justice - it was an
unfair trial.
17. In "Modula India v. Kamakshya Singh Deo" (1988) 4 SCC 619
the Hon'ble Supreme Court has observed as under:
"18. We agree that full effect should be given to the words that
defence against ejectment is struck off. But does this really deprive
the defendant-tenant of further participation in the case in any
manner? While it is true that, in a broad sense, the right of defence
takes in, within its canvass, all aspects including the demolition of
the plaintiff's case by the cross-examination of his witnesses, it
would be equally correct to say that the cross-examination of the
plaintiff's witnesses really constitutes a finishing touch which
completes the plaintiff's case. It is a well-established proposition
that no oral testimony can be considered satisfactory or valid unless
it is tested by cross-examination. The mere statement of the
plaintiff's witnesses cannot constitute the plaintiff's evidence in the
case unless and until it is tested by cross-examination. The right of
the defence to cross-examine the plaintiff's witnesses can, therefore,
be looked upon not as a part of its own strategy of defence but
rather as a requirement without which the plaintiff's evidence
cannot be acted upon. Looked at from this point of view it should be
possible to take the view that, though the defence of the tenant has
been struck out, there is nothing in law to preclude him from
demonstrating to the court that the plaintiff's witnesses are not
speaking the truth or that the evidence put forward by the plaintiff is
not sufficient to fulfil the terms of the statute."
18. For the aforesaid reasons, without going into merits of the
matter, the judgment dated 26th August 2017 passed in Original Suit (MTS)
No. 508 of 2015 is set aside.
19. The matter is remitted back to the Family Court at Ranchi.
20. The parties shall appear before the Family Court at Ranchi on
4th November 2022.
21. The appellant who is respondent in the divorce suit shall be
granted permission to cross-examine the witnesses produced by the husband.
22. Original Suit MTS No. 508 of 2015 is restored to its original
records.
23. FA No. 41 of 2018 is allowed in the aforesaid terms.
24. Photocopy of the lower Court records shall remain along with
the original records of FA No. 41 of 2018.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 21st September, 2022
SB/Nibha-NAFR
