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Bench: JUSTICE Veena Birbal


Law Point:
Husband has the right to cross examine Wife.





The petitioner/husband has filed a divorce petition against the respondent/wife which is listed for final arguments before the learned Trial Court. A challenge has been made to the order dated 18.12.2010 by which opportunity of cross-examination of RW-1 i.e. the respondent/wife has been closed.

2. The Counsel for appellant submits that the respondent had filed her affidavit only on 16.12.2010. On the said date, the petitioner had given maintenance of Rs. 30,000 to the respondent and due to non-availability of Counsel for petitioner/husband, the case was adjourned for 18.12.2010 subject to costs of Rs. 1000.

3. Even on 18.12.2010, the Counsel for petitioner could not appear and the learned Trial Court has closed the opportunity of cross-examination of RW-1. It is stated that on the said date RE was closed and the matter was listed for final arguments.

4. The learned Counsel submits that till date arguments have not been heard and the matter is listed before Trial Court on 28.4.2012. It is further submitted that the right of cross-examination is an important right and if the same is not given great prejudice will be caused to the petitioner inasmuch as evidence of respondent/wife will go unrebutted. It is further submitted that the same will also have serious consequences on the petitioner/husband as petitioner/husband would not be in a position to demolish the stand of respondent.

5. The respondent has all through appeared in person. She has opposed the present petition and has contended that keeping in view the facts and circumstances of the case, the petitioner is not entitled for any opportunity to cross-examine the respondent.

6. I have considered the submissions made and perused the material on record

7. It may be noticed that the case was listed for the first time for evidence of respondent on 16.12.2010. On the said date, respondent/wife has filed her evidence by way of affidavit. The case was then adjourned to 18.12.2010. On the said date Counsel for petitioner/husband was not present. The impugned order has serious consequences on the petitioner/husband as the evidence of respondent will go unrebutted as right to cross-examine has been closed which is a valuable right of petitioner/husband. The petitioner should not be allowed to suffer due to lapse on the part of Counsel.

8. In the interest of justice, the impugned order dated 18.12.2010 by which right of the petitioner/husband to cross-examine the respondent has been closed, is set aside subject to costs of Rs. 5,000 to the respondent. The petitioner is given one opportunity to cross-examine the respondent/wife. The parties will appear on 28.4.2012 before the Trial Court and the petitioner shall pay the costs of Rs. 5,000 to the respondent and the Trial Court shall give a suitable date for cross-examination of RW-1. It is clarified that only one opportunity will be given to the petitioner for cross-examination and prior to that he will also clear all the arrears of maintenance pendente lite. The petition stands disposed of.

LCR be sent back forthwith. CM 5703/2011. In view of above, no further orders are required on this application. The same stands disposed of accordingly.

C.M. disposed of.

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