PIROJA GHADIALI Vs. PESTONJI GHADIALI

JUDGEMENT

(1.) AFTER the crass-examination of the defendant by Mr. Manecksha and re-examination by Mr Banaji was closed, Mr. Forbes asked for leave to cross-examine the defendant. The Indian Evidence Act gives the right of cross-examination only to the adverse party. In the present case the defendant and the co-defendant have both denied the adultery, and, so far as the written statements put in by them go, their defences are identical. There is nothing in the evidence given by the defendant which can in any way be said to be adverse to the co-defendant. The general rule is that a defendant may cross-examine his co-defendant who gives evidence, or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own: Halsbury, 2nd edn., Vol. XIII, p. 75, and also Vol. X, pp. 736-737. It is only where the evidence of a co-defendant or a co-respondent is adverse to 'the defendant or the respondent that the defendant or respondent can claim the right to cross-examine. There would be very obvious disadvantages if in this case, where the contentions of the defendant and the co-defendant are identical, the co-defendant were allowed to cross-examine the defendant, who for all practical purposes may be regarded as the co-defendant's witness. The disadvantage becomes all the more serious because the request to cross-examine is made after the real adverse party, the plaintiff has finished his cross-examination. The co-defendant, if allowed to cross-examine the defendant, will be able to practically nullify the effect of the plaintiff's cross-examination and to get in additional evidence to fill up any gaps which may have been disclosed by the plaintiff's cross-examination, and to do so by putting leading questions which would not have been permissible in examination-in-chief.

(2.) MR. Forbes relied in support of his contention on the decision in Allen v. Allen [1894] P. 248 in which it was held that the evidence of one party cannot be received as evidence against another party in the same litigation unless the latter party has had an opportunity of testing it by cross-examination; and that in a divorce suit, the evidence of the respondent is not admissible against a co-respondent if the Judge refuses to allow the co-respondent to cross-examine upon it. In that case the respondent had made certain statements which conflicted with the account which the co-respondent had given of the same matter, and it was with regard to these statements that permission to cross-examine was asked for. The question, therefore, in that case was whether in a case in which the attitude of the respondent was hostile to the co-respondent the co-respondent was entitled to cross-examine the respondent, and it was held that unless he was allowed to do so, the respondent's evidence could not be admitted against the co-respondent. There is nothing in this ruling which necessarily conflicts with the principle that as between a respondent and a co-respondent the right to cross-examine would arise only if either is hostile to the other. This is how the decision in this case has been interpreted by several authorities: vide Phipson on Evidence, 7th edn., p. 458, where the learned author says: The same right (i.e. the right to cross-examine) exists between respondent and corespondent in Divorce cases, provided either is hostile to the other, for if friendly, e.g, where both deny the adultery, each can only be examined as the other's witness and not cross-examined. The same view has been taken in the passage in Halsbury, Vol. XIII, p. 757, to which I have referred. As in this case, the interests of the defendant and the co-defendant are not hostile, the co-defendant cannot be allowed to cross-examine the defendant.

(3.) MR. Maoecksha for the plaintiff asks that the defendant should be ordered to bear her own costs both in the suit and in the counter-claim. He says that though the plaintiff would .be entitled to ask for his costs in the counter-claim he does not press for them. MR. Banaji for the defendant contends that the general rule in matrimonial cases is that the wife even though unsuccessful is entitled to her costs from the husband and that therefore the defendant in the present case should get her costs both in the suit and in the counter-claim from the husband.